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Haz. Shah Wali Allah 
in the Mirror of his Juristic 
Views and Services 

Prepared in Urdu 

Ml. Mufti Akhtar Imam Adil Qasmi 

Edited and translated from the Urdu 

Md. Ibrahim Khan 

MA, PGDTE 


Published by 

Jamia Rabbani, Manorwa Sharif, 
Samastipur, Bihar, India. 



11 


Haz. Shah Wali Allah in the mirror of his juristic views and services 


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Haz Shah Wali Allah apne Fiqhi 

nazariyaat voa khidmat ke aine me. 

ML. Akhtar Imam Adil, Qasmi 

Jamia Rabbani, Manorwa Sharif, 

Samastipur, Bihar, India. 

Shah Wali Allah in the Mirror of 

his Juristic Views and Services 

Md. Ibrahim Khan 
MA, PGDTE 
(Nagla Sahu, Meerut) 

(viii + 188) = 196 


Jamia Rabbani, Manorwa Sharif, 
Samastipur, Bihar, India. 



Haz.Shah Wali Allah in the mirror of his juristic views and services 


iii 


Dedication 


I dedicate this book to the Jamia Rabbani, an institution of higher Islamic 
religious learning, the central point of my best wishes and the essence of 
all my religious and academic pursuits. 


May Allah place it in His good acceptance. (Amin) 


Akhtar Imam Adil Qasmi 



iv Haz. Shah Wali Allah in the mirror of his juristic views and services 


Table of Contents 

Table of Contents iv 

Opening Lines 1 

Hazrat Shah Wali Allah A short Biographical note 3 

Education 4 

The Syllabus followed by the Shah 4 

Tutorship of Shah's father 6 

Marriage 7 

Second Marriage 7 

Pilgrimage voyage 8 

Mentors of the Shah 9 

Teaching of Hadith 11 

Death 12 

Note 13 

CHAPTER-I 14 

Outstanding reformatory services of the Shah towards the Islamic 

Fiqh 14 

Reconciliation between Fiqh and Hadith 14 

The Moderate View 18 

Legitimacy of Taqlid 19 

Characteristics of the Four Juristic Schools 21 

Necessity of Ijtihad 22 

CHAPTER-II 24 

People's estimation of the Shah as mujtahid-e-muntasab 24 

29 


CHAPTER-III 



Haz.Shah Wali Allah in the mirror of his juristic views and services 


v 


A brief descriptive survey of Haz. Shah Wali Allah's epoch-making 
achievements and great reformative services to the overall academic 
enterprise of his contemporary world of Islam and of the influence he 


exerted on subsequent Muslim generations 29 

CHAPTER-IV 34 

A realistic assessment of the Shah as a Faqih, the Intellectual and 
Academician 34 

CHAPTER-V 39 

Some Juristic views and Discussions of Haz Shah Wali Allah 39 

Linking Fiqh to its original sources 39 

The Way the Ummah Received the Divine Law from the Prophet 
(SAWS) 39 

Judging Among Divergent Hadiths 42 

Under plausible interpretations come: 44 

CHAPTER-VI 49 

Shah Wali Allah's position and place in the order of the Fuqaha and 
His approach to Fiqh and Jurispredence 49 

CHAPTER-VII 50 

The Causes of the Disagreement of the Companions and the 
Successors Concerning Applied Jurisprudence (al-Furu) 50 

Differences of opinions amongst the Fuqaha 58 

Prefatory Note 58 

CHAPTER-VIII 61 

The Causes for Disagreement among the Schools of the Jurists 61 

CHAPTER-IX 69 

The Difference Between the People of the Hadith and Those Who 
Exercise Personal Opinion 69 


CHAPTER-X 


81 



vi Haz. Shah Wali Allah in the mirror of his juristic views and services 

An Account of the Condition of People Before the Fourth Century and 
After 81 

Subsection 84 

Examples of Type A 98 

Examples of Type B 98 

Examples of Type F 99 

Examples of Type E 99 

CHAPTER-XI 102 

Ijtihad - Meaning and Grades 102 

The Meaning of Ijtihad 102 

The Task of the Mujtahid 102 

Basic Assumptions Made by the Mujtahid 103 

Texts That are not Subject to Ijtihad 104 

The Three Modes of Ijtihad 105 

The first mode 105 

The second mode 106 

The third mode 106 

The Complete Process of Ijtihdd 106 

Ijtihad and its Types 107 

The Qualifications of the Mujtahid 108 

Taqlid as a Methodology 109 

Taqlid as a Basis for the Islamic Theory of Adjudication 110 

Literal Meaning of Taqlid 111 

Technical Meanings of Taqlid 111 

The Hukm of Taqlid and Ijtihad 112 

Taqlid in Law is an Exemption from the General Rule of 
Prohibition 112 

114 


Taqlid and the Islamic Legal System 



Haz.Shah Wali Allah in the mirror of his juristic views and services 


vii 

The mujtahid and the faqih 116 

CHAPTER-XII 119 

Preliminary note 119 

Peacefulness of His Mind 119 

CHAPTER-XIII 121 

Writings of Shah Wali Allah on Fiqh 121 

Significance of Izalat al -Khifa 124 

Correlation between Hujjat Allah and Izalat al-Khifa 125 

Acknowledgement 127 

Bibliography 128 




Opening Lines 


Shah Wali Allah of Delhi holds outstanding importance in the 
south Asian Muslim religious history, especially in respect of Islamic 
scholarship in general and the hadith in particular. Numerous books, 
both small and voluminous, have been written to deal with different 
aspects of his personality and services. Various periodical and 
magazines published special issues about him. A number of academies 
and research institutions in India and Pakistan has been established to 
introduce his academic legacy to the world at large and to carry forward 
his mission. With the same aims and objectives more institutions are 
coming into existence with the passage of time. 

Strangely enough, the amount of attention paid to acknowledge 
the Shah's services to the areas of the Qur'an and hadith and allied 
branches is far greater as compared to that exclusively intended to assess 
his services he rendered to the area of Islamic fiqh and jurisprudence 
and his historic contribution to enrich it, his bold criticism of blind 
adherence to the juristic schools, harmonization of reason and religious 
thought and coordination of different juristic thought. Perhaps that is 
why even after passing almost three centruies over his demise, one is not 
certain to tell to which school of jurisprudence the Shah stood affiliated. 
The Shah's special juristic views stand in need to be subjected to research 
and scholarly analysis. 

Of late, a noted Islamic scholar and author from Mumbai was 
kind enough to visit our Jamia Rabbani. He said that a detailed work on 
Shah Wali Allah's juristic views was published in Pakistan but he was 
not able to have even a single copy of it even after all possible search. 

Right from my days of studentship I had a keen curiosity to 
understand the Shah, his position and place in the midst of the reformers 
and renovations. Ever since I attained some sense of knowledge and 
learning I continually heard his name from my teachers. When I got 
admission to the Darul-Uloom Deoband, I was taught that the Deobandi 
persuasion stood for the thoughts of Shah Wali Allah. All such things 
prompted me to understand this great man and scholar. During my 
studentship at Deoband when I first happened to see the Hujjatulla al- 
Balighah. I got intellectually embarrassed. In particular, his analyses and 
comments on a number of juristic concepts and popularly- held views 
gave a greater shock to the concepts of my traditional learning and 
scholarship. In order to get my self out of this shocking embarrassment. I 
submitted my critical notes to a teacher of mine (whom I regard my 



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Haz. Shah Wali Allah in the mirror of his juristic views and services 


benefactor and mentor and in those days I would rely upon his single 
person to consult in all my intellectual and academic questions and 
problems). Since my mode of thinking was not proper and the tone of 
writing too was unpalatable rather immature, he returned my stack of 
papers without any answer or touching. It grieved me for a while but my 
passion for further study about him the and of all of his important works 
and understand him in the light of his legacy my this voyage in which I 
had no companion except the books, continued for years and eventually 
I was satisfied with the Shah's juridicial views. I, however, was not thus 
far able to arrange my views in the form of a systematic writing. 

It was a stroke of good luck that the Delhi-based Shah Wali 
Allah Institute invited me to read in its seminar on the Shah a paper on 
his services to the Islamic Fiqh and jurisprudence. Although I could not 
attend the seminar due to a number of reason personal al together, yet I 
was able to give a systematic shape to the entire collection of the notes 
and memoirs for which my random study, extending over a number of 
years stood and which was thus far lying without an order or 
arrangement. Present book is the gist of my this long voyage. 

Here I did not intend to discuss all juristic views of the Shah. 
Such a comprehensive attempt will require a full-fledged book. I have 
kept myself limited to deal with only those ideas of the Shah which clear 
his distinction and bring into sharp focus his position as a renewer and 
revivalist of the Islamic scholarship. The learned readership is earnestly 
solicited to go through the book and favour the author with their 
valuable comments. 


Akhtar Imam Adil Qasmi 

Jamia Rabbani Manorwa Sharif, Samastipur, Bihar 
Safar 28, 1425 H. 



Haz.Shah Wali Allah in the mirror of his juristic views and services 


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Hazrat Shah Wali Allah 
A short Biographical note 


Shah Waliullahl was born at dawn on Wednesday, the 4th of 
Shawwal 1114/lOth February. 1703 at Phulat (now in district 
Muzaffarnagar) in the house of his maternal grandfather. His year of 
birth can be computed from his chronogrammatic name Azim-ud- 
din, Shah 'Abdur Rahim was sixty years of age at the time of Shah 
Waliullah's birth. It is related that Shah 'Abdur Rahim decided to 
contract the second marriage while his first wife, the mother of his 
eldest son Shaikh Salah-ud-din was still alive on having the 
divination of a son from another wife'. Shaikh Muhammad of Phulat 
on coming to know of the intention, of Shah 'Abdur Rahim, offered 
the Shah to give his daughter in marriage which took place early in 
the year Shah Waliullah was born. 

The name of Shah Waliullah's mother given in the Al-Qaul-a-Jali 
was Fakhr-un-Nisa. The author of this book Shaikh Muhammad who 
happened to be a nephew of Shah's mother, reports that she was well- 
versed in religious disciplines. He says : "His (Shah Waliullah's) 
mother had received schooling in the Qur'an and hadith, was adept 
in the spiritual path and a knower of truth. She was as qualified as 
her name indicated; a pride for the womenfolk." 

Shah Waliullah relates that his father had been foretold of his 
birth in a dream by Khwaja Qutb-ud-din Bakhtiyar Kaki who also 
asked his father to give his name to the baby. However, Shah 'Abdur 
Rahim forgot about the instruction of the Khwaja and thus he was 
given the name of Waliullah. Later on when his father recalled it to 
his memory, he was by named by him as Qutb-ud-din Ahmad. 

Shah Waliuliah was seven years of age when he first joined his 
parents in the midnight prayer and gave his hand into theirs, as 
predicted in the vision of his father before his birth. 



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Haz. Shah Wali Allah in the mirror of his juristic views and services 


Education 

Shah Waliullah was admitted into the primary school (maktab) 
at the age of five years. He was circumcised when he had attained the 
age of seven years, and also started offering prayers regularly. He 
committed the Qur'an to his memory within a year and started schooling 
in Arabic and Persian. After he had read the preliminary, text-books ; he 
studied the Kafiyah. At the age of ten he began the study of the Sharh 
Jami, Shah Waliullah says that the study of these books had fitted him 
for going through other books by himself. The Shah poured over a part 
of Baidawi when he was fourteen and finished his schooling of the then 
prevalent curriculm at the age of fifteen years. His father invited a large 
number of guests to partake in a repast on that occasion. 

The Shah then studied a major portion of the Mishkat under his 
own father and was also taught parts of Sahih Bukhari, Shamia'il 
Tirmidhi Quranic commentaries of Madarik and Baidwai by him. He 
says that it was a grace of God that he attended the lectures delivered by 
his father on the exegesis of the Qur'an which helped him to understand 
the Qur'an in depth. 


The Syllabus followed by the Shah 

Shah Waliullah has given in detail the syllabus undergone by 
him. Fiqh (jurisprudence; included Sharh Waqayah and a part of 
Hidayah, Usul-Fiqah (juristic principles) had Hosami and the major 
portion of Taudhih-wa-Talwih, Mantiq ( logic) com-prised Sharh 
Shamsiyah and a part of Sharh Matal'e, Kalam (theological dialectics) 
included the whole of Sharh-i-' Aqa'ad and certain parts of the Hashiyah- 
i-Khiyali and Sharh-i-Mawaqif, Suluk (mysticism) had parts of 'Awarif- 
al-Ma'arf and Rasa'il Naqsh-bandyah, and. Haqa'iq (dogmatics) 
included Sharh Ruba'iyat-i-Jami and Lawayih Muqaddimah Sharh-i- 
Lam-at Muqaddimah Naqad al-Nasus, Khawas-i-Asma'-wa-Ayat and 
AI-Fawayed al-Ma'atah. 

The syllabus of Tibb (medicine) included Mujiz, Falsafah 
(philosophy) had Sharh Hidayat-al-Hukama and few other treatises, 
Ma'ani (rhetoric) comprised a greater portion of Mutawwal and the part 
of Mukhtasar al-Ma'ani containing com-mentary of Mulla Zada and 
certain books of Mathematics and numerology. 

The syllabus undergone by Shah Waliullah was to a large extent 
prepared by Shah ' Abdur Rahim. In the syllabus pre-valent in India 



Haz.Shah Wali Allah in the mirror of his juristic views and services 


5 


since the seventh century, certain additions relating to theological 
dialectics, rhetoric and logic had been made by the end of ninth century 
on the arrival of Shaikh Abdullah and Shaikh 'Azizullah from Multan to 
Delhi. Then in the tenth century, when Amir Fathullah Shirazi came to 
Delhi, certain writings of the Iranian scholars like Muhaqiq Dawwani, 
Mir Sadr-ud-din Shirazi, Mir Ghiyath-ud-din Masur and Mirza Jan also 
found place in the curriculum. Shah 'Abdul Rahim adopted a selective 
approach in preparing the syllabus for his son, which showed his 
realism as well as confidence in the ability and intelligence of his son. He 
deleted several text-books which were merely repetitive as, for instance, 
he got him to study only Kafiyah, and Sharh Jami for grammar and 
syntax in place of Misbah. Lubb-al-Albah (of Qazi Nasir-ud-din 
Baidawai) and Irshad (of Qazi Shihab-ud-din of Daulatabad). In the 
juristic principles he taught Hosami and certain parts of Taudih-wa- 
Talwih in place of the prevalent text-books that is, Manar and its 
commentary and Usui Bazdawi. He also deleted Kashshaf in exegesis, 
Mashariq ul-Anwar in hadith and Muqamat Hariri in literature although 
the last mentioned book was considered an important part of the then 
curriculum and certain teachers even insisted on memorisation 

of a part of the book. It is also possible that a few of the text- 
books deleted by Shah 'Abdur Rahim might have lost their importance 
in the pedagogic circles by the beginning of the twelfth century. 

It is to be noted that in the twelfth century Mulla Nizam-ud-din 
of Firangi Mahal, Lucknow, had brought about significant changes in the 
curriculum of Arabic madrasas. Mulla Nizam-ud-din, who died in 
1161/1748 being a bit elder than Shah Waliullah, made significant 
changes by including new text-books particularly for the study of 
grammar, etymology and syntax, logic and philosophy, mathematics, 
rhetoric and theological dialectics. A few additions and alterations came 
to be made later on by the disciples of Mulla Nizam-ud-din whose 
curriculum known as Dars-i-Nizarni was voluntarily, adopted by all the 
educational institutions. It is still prevalent in certain institutions 
following the old curriculum. 

The syllabus reported to have been gone through by Shah 
Waliullah includes no text-book on Arabic literature although his Arabic 
works, especially the Hujjat Allah al-Baligha, bear witness to his 
command over Arabic. The Hujjat Allah al-Baligha even brings into 
prominence the unique style of the Shah which is not only lucid, simple 
and direct but also the most appropriate for literary creations and 
expression of serious thoughts. No writer after Ibn Khaldun can afford 



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Haz. Shah Wali Allah in the mirror of his juristic views and services 


to bear compa-rison with the facile pen of Shah Waliullah. It seems that 
the Shah had, by himself, waded through those living and original 
works of Arabic literature which were free from the laboured pedantry 
of the non-Arab style of later period. His stay in Hijaz gave him an 
opportunity as if through a plan of the Providence, to prepare himself 
for his great literary works. If the Shah has not inadvertently missed to 
mention Muqamat-i- Hariri from the course of study pursued by him, it 
was perhaps better that he did not go through it since the cobwebs spun 
by the previous generations of imitative writers unable to express their 
thoughts in a simple and direct style, show influence of the rhyming 
prose of al-Hariri. All the writers after al-Hariri had imitated his style 
although his refinements had been rendered archaic with the passage of 
time: such was al-Hariri' s influence that even the legal dicta were 
phrased by the jurists in the same diction. 

The Shah says that he used to have a flow of ideas even in the 
days he was studying and this went on increasing giadually. During the 
twelve years, after the death of his father when he taught the students 
different religious and rational subjects, he got the opportunity to reflect 
over a variety of issues. 

Tutorship of Shah's father 

Shah Waliullah says that his father was very kind to him — 
kinder than any father, teacher or spiritual guide can be to his ward. His 
father used to teach in a way that his words sank into the heart of the 
listner. Once the Shah wasted his day in sight-seeking with his friends 
On his return, the Shah reports, his father said, "Waliullah, did you do 
anything of lasting value during these twenty -four hours ? I have recited 
darud so many times today" The Shah, as he says, lost all interest in 
excursions and thereafter never wasted his time in that manner. His 
father used to pay particular attention in instructing the Shah about 
prudence, etiquettes and cool-headedness. The Shah had been instructed 
by his father to take precedence in saluting those who were lowly and to 
be kind and courteous to them. He had also warned the Shah against 
taking a fancy to any particular dress or mode of expression, or showing 
aversion to a thing edible. His every desire had to be based, as the Shah's 
father had told him, not on seeking any pleasure but on following some 
sunnah of the holy Prophet, or meeting any need, or promoting oneself 
in wisdom and morals. He had also told the Shah that nothing in his 
mode of sitting or walking should be indicative of indolence or fatigue. 
Shah 'Abdur Rahim was, according to Shah Waliullah, prudent and 
courageous, efficient in management of his affairs, zealous in religious 



Haz.Shah Wali Allah in the mirror of his juristic views and services 


7 


matters and moderate in temperament. Shah Waliullah had inherited all 
these qualities of his father. 

Shah Waliullah was also initiated by his father into his spiritual 
order at the age of fourteen years. He instructed the Shah in the methods 
of contemplation and self -edification, and also endued him with the robe 
of mystics. Shah Waliullah was of seventeen years when his father died. 
During his last illness, Shah 'Abdur Rahim permitted the Shah to enroll 
novices to his spiritual order and to guide them. He had remarked on 
the occasion : "His hand is like unto my own. " 

Marriage 

Shah Waliullah's age was only fourteen when his father got him 
married to the daughter of the Shah's maternal uncle Shaikh Ubaid Ullah 
Siddiqi of Phulat. Shah 'Abdur Rahim was pressed to postpone the 
marriage for the time-being but he insisted on performance of the 
ceremony. Subsequent events, particularly the bereavements Shah's 
family had to face, proved the wisdom, of Shah's father. If the marriage 
had been postponed once, it would have been deferred for a long time. 
The first son born to his wife was Shaikh Muhammad. The Shah himself 
schooled his son and wrote a primer for him. Later on Shaikh. 
Muhammad studied the Shamail Tirmidhi along with Shah 'Abdul 'Aziz 
under the same teacher.' Shah Muhammad migrated to Budhana after 
the death of his father and died there in 1208/1793. He was buried in the 
courtyard of the Jami Mosque of Budhana. It was because of his eldest 
son that the Shah was also known as Abu Muhammad Two sons of Shah 
Muhammad are reported by some to have been buried near him while 
others, claim that he was issueless. In his three letters to Shah Abu Sa'eed 
of Rae-Bareli, Shah 'Abdul 'Aziz has conveyed the good wishes, of his 
elder brother Shah Muhammad to him. These letters speak of the great 
regard Shah 'Abdul 'Aziz had for Shah Muhammad.' 

Second Marriage 

After the death of his, first wife Shah Waliullah married Bibi 
Iradat the daughter of Saiyid Thana Ullah of Panipat who is reported to 
be a descendant of Saiyid Nasir-ud-din Shahid. Bibi Iradat was the 
mother of the Shah's four sons— Shah Abdul 'Aziz, Shah Rafi-ud-din, 
Shah 'Abdul Qadir and Shah 'Abdul Ghani — who can be rightly called 
the four pillars of Islamic revival in India. The Shah had also a daughter 
Ummat-ul-'Aziz by his second wife who was married to Muhammad 



8 Haz. Shah Wali Allah in the mirror of his juristic views and services 

Faiq b. Muhammad ' Ashiq of Phulat. Her descendants still reside in 
India. 

Pilgrimage voyage 

The Shah's journey for the pilgrimage and stay in Hijaz is a 
landmark of crucial importance in his subsequent intellectual and 
reformative endeavour. During his stay in Hijaz which extended to a 
period of more than a year, be equipped himself thoughtfully in a way 
that was scarcely possible in India. The Shah required a centre of 
learning, a place where the savants from every part of the Islamic world 
had converged for the sharpening of his wits. He undertook a deep 
study of the hadith in Hijaz under the most erudite scholars which later 
on became the cornor-stone of his revivalist campaign. His studies also 
helped him to equip himself in comprehending the secrets and wisdom 
of the shark ah to a degree not attained by anyone during the few 
hundred years in the past. 

The Shah was thirty years of age when he set out for the 
pilgrimage. The fact that he had made up his mind to go for the Hajj 
during a time of unsettled political conditions and lawlessness 
prevailing in the country and frequent piracies in high seas speaks of his 
courage and attachment to the sacred Mosques. The Shah also wanted to 
study the conditions in other Muslim countries before deciding his 
course of action for the defence of Islam in India. Most probably he had 
the Quranic instruction for acquiring knowledge — that they may witness 
things that are of benefit to them — in his mind for he wanted to benefit 
from the experiences of the learned and wise from all parts of the world 
converging in the centre of Islam. Surat was then the sea-port for ships 
sailing for Arabia but the entire route, particularly Malwa and Gujarat 
were hunting 

grounds of Maratha marauders. The great distance from the north to the 
south India had in those days to be covered on carts driven by bulls or 
camels. Indian seas were also infested by a most formidable breed of 
European pirates, cheifly English and Portugese, who practised fiendish 
cruelty on the people, men, women and children. The hardships 
undergone by the haj pilgrims can be seen in the few travelogues of the 
time that have survived. The journey within the country was no less 
hazardous. The Shah says that whenever anybody accompanying his 
party was missing during the night, he started reciting the litany of Ya 
Badi ul-Aja'ib for his safety. The ship boarded by the Shah took forty- 
five days to reach Jiddah and he reached Makkah on the 15th of Dhi 
Q'ada. He also started delivering lectures within the Holy Mosque, near 



Haz.Shah Wali Allah in the mirror of his juristic views and services 


9 


the place allocated to the Hanafite Imam. It was a great success since the 
number of people who flocked to listen him was quite large. 

The Shah writes in the Al-Juz-al-Latif "I had a great yearning to 
perform the haj during 1143/1730-31 which was accomplished by the 
end of that year. During the succeeding year I did homage to God at the 
K'aba, paid a visit to Medina, studied hadith under Shaikh Abu Tahir 
Madani and other scholars of the two holy cities, was bestowed a robe 
by Shaikh Abu Tahir Madani who perhaps combined all the different 
mystic orders in his person and performed the haj a second time by the 
end of the year. Early in 1145/1732, I was again on the move for India 
and I reached my home (at Delhi) safely on the 10th Rajab 1145/16th 
December 1732." 

Mentors of the Shah 

In the Insan-al Ain fi Masha'ikh al-Hannayn, written by Shah 
Waliullah in the memory of his teachers in the two sacred cities, he has 
given a bit detailed account of Shaikh Abu Tahir Muhammad b. Ibrahim 
al-Kurdi-al-Madani for whom he had a great regard and affection. His 
description of these men of learning shows that the guides on the path of 
spirit leave an indelible mark on the character and morals of intelligent 
students. 

As the Shah says Shaikh Abu Tahir Muhammad al-Kurdi had 
first studied hadith under his own father Shaikh Ibrahim al-Kurdi, and 
then from Shaikh Hasan Ujaimi. Shaikh Abu Tahir also got instruction 
from Ahmad Nakhali and took lessons in Shamail-i-Nahawi and 
Musnad Imam Ahmad from Shaikh 'Abdullah Basari for two months. 
He was permitted to transmit the ahadith contained in the works of 
Mullah 'Abdul Hakim of Sialkot and Shaikh 'Abdul Haq Muhaddith of 
Delhi by Shaikh -Abdullah of Lahore. He was also taught a quarter of 
Fath-ul-Bari and certain other Arabic works by Shaikh Sa'eed of Kokan. 

Muhsin b. Yahya Turhati relates in the Al-Yan'i al-Janni that 
Shaikh Abu Tahir often remarked that Shah Waliullah was instructed by 
him in the recital of the ahadith, while he had himself benefited from the 
Shah in understanding their import. He also mentioned it in the 
certificate he granted to Shah Waliullah." 

Shaikh Abu -Tahir was an eminent scholar of hadith, yet he was 
a man perfect in spirit who never relished criticism of the mystics. Shah 
Waliullah reports that when he sought leave of Shaikh Abu Tahir to 
return home, he recited a couplet, saying : 



10 


Haz. Shah Wali Allah in the mirror of his juristic views and services 


I have forgotten all other paths, 

Save the one that leads to your home. 

Shaikh Abu Tahir was pleased to get an almost similar reply from Shah 
Waliullah. Shah 'Abu' 'Aziz relates that his father had replied, 
"Forgotten is whatever I had ever read except hadith and religious lore." 
Shah Waliullah' s subsequent life and his engagements bear testimony to 
the fact that he had spoken the truth. Of the believers are men who are 
true to that which they covenanted with Allah. 

Shaikh Abu Tahir died in Ramadhan 1145/February 1733, that 
is, about two months after the Shah reached his home. Flis father. Shaikh 
Ibrahim Kaur'ani was a fan of Ibn Taimiyah. always defending the latter 
whenever any body criticized him. Saiyid Noman Khair-ud-din Alusi 
writes in the Jal'a-al Aynain fi-Mahakamat-al- Ahmadain about Shaikh 
Kaurani. 

"He belonged to the Salafi school and defended Shaikh-ul-Islam 
Ibn Taimiyah. Similarly, he would explain away these expressions of the 
mystics which apparantly alluded to in-dwelling, unity or essentiality 
(of human soul with God)." 

The advocacy and acclamation of Shaikh-ul-Islam Ibn Taimiyah 
in the writings of Shah Waliullah should have come from the influence 
of Shaikh Abu Tahir and his father Shaikh Ibrahim Kaurani just as he is 
more often inclined to adopt a conciliatory attitude in several other 
matters like his own father. 

Another scholar of hadith who certified competence of the Shah 
in that discipline was Shaikh Ta-j-ud-din Qala'i, the Mufti of Makkah, 
who had been the disciple of Shaikh 'Abdullah b. Salim of Egypt and 
Shaikh 'Ujaimi. He attended the lectures of Shaikh Taj-ud-din on 
Bukhari for three days and heard his recital of several other hadith 
collections. 

During his stay in Hijaz the Shah received instruction in 
Muwatta of Yahya b. Yahya from Shaikh Muhammad Wafd Ullah. He 
also granted a certificate of proficieny to the Shah in the hadith 
compilation of his father Shaikh Muhammad b. Muhammad b. Sulaiman 
al-Maghribi. 

The Shah had earlier attended the lectures of Shaikh 
Muhammad Afzal of Sialkot, the most erudite scholar of hadith in India. 
Shaikh Muhammad Afzal had undergone schooling under Shaikh Salim 
'Abdullah Basri and Shaikh 'Abdul Ahad Ibn Khwaja Muhammad 
Sa'eed Sarhindi, and was the lecturer in hadith in Madrasa Ghazi-ud-din 



Haz.Shah Wali Allah in the mirror of his juristic views and services 


11 


Khan at Delhi. He had also taught hadith to Mirza Mazhar Jan-i-Janan 
and guided him in the spiritual discipline. 

The Shah was accompanied by his maternal uncle Shaikh -Ubaid 
Ullah of Barha and a cousin Shaikh Muhammad ' Ashiq in the 
pilgrimage. He learnt of his mother's death at Makkah while he was on 
his way back to India. 

Shah Waliullah was a keen student of hadith and the two holy 
cities offered him the best opportunity to pursue his studies there as well 
as to instruct others who came there for the purpose from different parts 
of the Islamic world. The merit of offering prayers in the two sacred 
Mosques and unsettled conditions in India which was gradually 
slipping from the hands of long established Muslim rule to the grip of a 
foreign power were some of the additional reasons that would have 
provided a justi-fication for the Shah to opt for permanent settlement in 
the holy land. But he decided to return to India since divine Providence 
had earmarked for him the glorious role of a reformer and renovator of 
faith in his homeland. He had in fact received an indication of his future 
course of action from the holy Prophet. He had the premonition: Tt is 
ordained by God that the Muslims would be enabled to consolidate 
themselves through you." 

The Shah was pre-disposed to make India the centre of his 
intellectual and religious endeavours and wanted those closer to him to 
do likewise. It was the country where the earlier Muslims had worked 
hard to serve the cause of religion and education, had produced great 
scholars and saints in different eras of its history, and the country was 
also destined to become the centre of hadith and other religious 
disciplines. One of the students of the Shah was Makhdum Moin-ud-din 
Sindhi. When Sindhi expressed his desire to settle down in Hijaz, the 
Shah wrote to him : 

'As regards your intention not to return to your home-land, do 
not take any final decision nor insist on it until you or one closer to you 
finds an inspiration in his heart in this matter.' 

Teaching of Hadith 

On his return from Hijaz, Shah Waliullah started teaching 
hadith in the Madrasa Rahimiyah, the school established by his father in 
the locality now known as Mehndiyan in old Delhi. His lectures soon 
attracted students from other madrasas in such large numbers that the 
Madrasa Rahimiyah proved insufficient accommodate all of them. 



12 


Haz. Shah Wali Allah in the mirror of his juristic views and services 


Emperor Muhammad Shah, despite his numerous faults and failings, 
provided a spacious building to the Shah for his madrasa in the new 
city, where he started teaching hadith to his students. Maulvi Bashir -ud- 
din writes about this madrasa. 

The madrasa, occupying a spacious and imposing building, was 
regarded as an institution of higher learning in those days. It remained 
in that state until the time of Great Revolt when it was demolished and 
people took away its logs and doors." 


He also says : 

Several houses were built on its site but the place is still known 
as Madrasa Shah 'Abdul 'Aziz." 

The reminiscences of Shah 'Abdul 'Aziz contain a reference to 
the masjid of the madrasa in these words: 

During the days I was born a number of persons purer 
of soul, who happened to be friends of my father, like Shah 
Muhammad 'Ashiq, Molvi Nur Muhammad and others used to 
reside in this masjid for prayers (duing the last ten days of 
Ramadhan)." 


Death 


At last the day came when this great huminary, who had spent 
every moment of his life in the service of Islam and Muslims, in the 
study and teaching of hadith, remembrance of God and preaching His 
message, left the fleeting world. Every soul will have the taste of death, 
be he a Prophet, a saint, a reformer or a fighter in the way of God. It was 
the beginning of 1176 A. H., towards the end of Muharram in that year, 
when the Shah left this world after a brief illness at the age of sixty-two. 

Shah Waliullah died on Saturday in the afternoon of 29th 
Muharram 1176/21 August, 1762, as stated by Shah 'Abdul 'Aziz in his 
reminiscences. 

"He died on 29th Muharram. The year of his death can be 
calculated from the chronogram Au Buwad Imam-i-Azam-i-Din (He was 
the great leader of religion) and Hai Dil-i-Rozgar Raft (Ah! the core of 
the Age has gone )." 

The Shah was buried at the place called Mehndiyan to the right 
of Delhi gate. The place occupied by this graveyard was once the site of a 
hospice of Shaikh Abdul 'Aziz, a maternal grand-father of Shah 'Abdur 



Haz.Shah Wali Allah in the mirror of his juristic views and services 


13 


Rahim. The grave of Shaikh 'Abdul 'Aziz still exists at a little distance. 
Shaikh Raf'i-ud-din had taken up residence there since the ancestors of 
Shah Waliullah had built their houses in that locality. Shah Waliuilah 
had abandoned the place and moved into the city then known as Shah 
Jahanabad. The place was later converted into a family graveyard where 
Shah Waliullah, his four sons as well as his father Shah 'Abdur Rahim 
were buried. The tombstones give the years of their death. There are also 
graves of other members of his family, both men and women. Nearby is 
a mosque around which there are graves of a large number of saints and 
scholars or those related to the family of Shah Waliullah. The number of 
graves in this cemetery goes on increasing day by day. 

Note 

Shah Waliullah himself has happily given all the necessary details 
regarding his education, tutorship by his own father, informal education on 
path of spirit, journey to Hijaz and the meetings with eminent personalities in 
that country, albeit briefly, in his autobiography. Two more sources of his 
biographical details are Al-Juz-al-Latif fi-Tarjumatil 'Abd-al-Zay'if and Insan- 
al-'Ayen fi-Masha'ikh ,al-Hararnayan. The details given here have been taken 
from these works as well as Anfas-al-' Arifin and Al-Qaul al-Jali. 



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Haz. Shah Wali Allah in the mirror of his juristic views and services 


CHAPTER -I 

Outstanding reformatory services of 
the Shah towards the Islamic Fiqh 

This chapter makes a brief mention of the reformatory services 
Shah Wali Allah offered to the Islamic fiqh to take it out of the 
ideological morass it had long been lying in, thanks to an age-old rigid 
concept of taqlid. 

Due to reasons purely historical the practice of taqlid, originally 
intended to be an arrangement to serve as safeguard against 
uncontrollable differences of opinions in legal matters had turned into 
an institution of unquestioned adherence to a particular school of Fiqh 
and naturally there was found a strong bias against the sources, at least 
practically, in almost all the adherents to the schools of Islamic Fiqh. 
Alarmed at the deteriorating situation, the Shah decided to do 
something the check the ever-swelling flood of rigidity and academic 
stagnation. Flis following reformatory services not just stemmed the tide, 
but cast far-reaching impact on the men of Islamic learning, on both on 
his contenporeris and the forth coming generations. 

Reconciliation between Fiqh and Hadith 

The intellectual and educational circles in the Islamic world had 
been divided, since a long time, into two schools of fiqh and hadith, each 
shaping its development independently of the other. 

Very often the cleavage once engendered never allowed them to 
close their differences. The juristic schools took note of the hadith only 
when they deemed it necessary to seek justification for the view held by 
them on a legal question, or when they had to rebut the criticism levelled 
against them for holding an incorrect view, or else to demonstrate the 
seemliness of their own juristic ruling in comparison to another school of 
filth. In the teaching of the Sihah, the jurisconsults normally tried to 
explain away the ahadith not in conformity with the views of their 
school or brought forth those which helped to verify the accuracy of 
their stand. If the classical work of any school of jurisprudence based its 
arguments pertaining to any legal issue on the ahadith, its followers 
having aptitude and competence to undertake research in hadith 



Haz.Shah Wali Allah in the mirror of his juristic views and services 


15 


normally limited their studies to the examination and elucidation of the 
ahadith referred to in such a classical work. These were undoubtedly 
praiseworthy intellectual endeavours to further the cause of their own 
schools of filth, still they could neither be deemed as efforts to reevaluate 
the legal issues nor an essay at bringing out the compatibility of the filth 
and hadith. The different schools of jurisprudence had been converted 
into iron moulds which could be broken but neither bent nor expanded. 
Those who adhered to any particular school of jurisprudence considered 
their own school to be hundred per cent faultless save for some remote 
possibility of human error. The prevailing thought has been succinctly 
expressed in an., adage which says : "Our way is primarily exact and 
flawless with a remote possibility of error, but those of others are 
basically wrong and unreceived with some prospects of validity." The 
result of this way of thinking was that the four juristic schools (Hanafite, 
Malakite, Shafe'ite and Hanbalite) which had been acknowledged since 
the earliest times as sects within the main body of orthodox Islam, and 
whose founders were undisputedly revered as pious and saintly souls, 
were drifting apart with the passage of time and their differences were 
degenerating into public debates which often turned into brawls and 
violent clashes. Even worse was the lot of those scholars who left any 
juristic school to follow the hadith in devotions according to their own 
understanding. Shaikh Muhammad Fakhir Za'ir (1120-11641/1611-1654) 
of Allahabad had to face popular resentment since, as some scholars 
assert, he dared follow the non-conformist path of the Ahl-i-Hadith. 

A significant achievement of the Shah which constituted a part 
of his endeavour for the regeneration of Islam as well as propagation of 
the hadith and restoration of the Prophet's sunnah was to establish the 
rapport between the hadith and figh in order to combine and reconcile 
the four juristic schools. His efforts in this direction were in fulfilment of 
the inspiration claimed to have been received by him from the holy 
Prophet that God would bless his efforts for the consolidation of the 
Muslims in a particular way. 

So far as Indian sub-continent is concerned, no effort seems to 
have ever been made earlier in this direction. The absence of any such 
attempt is explained by the peculiar historical and literary developments 
in this country. India had remained, ever since the advent of Islam in 
this country, under the Turk or Afghan suzerains. Both these races had 
not only been Hanafites from the time of their conversion to Islam but 
also its zealous supporters. 



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Haz. Shah Wali Allah in the mirror of his juristic views and services 


The Malikites and Hanbalites were unable to gain an entry into 
India for about eight hundred years. Shafe'ite school remained some 
adherents in the southern coastal regions, but it remained confined to 
certain parts of Madras, Karnataka, Bhatkal and Kerala. Only Malabar 
had a preponderance of Shafeite school since a number of scholars, 
mystics and merchants belonging to that school had settled there after 
emigration from other countries. It could also not produce scholars and 
traditionists, save a few like Shaikh Makhdom. Faqih ' Ali Mahayami (d 
835/1432), the author of the Tafsir Tabsir-al-Rahman and Taisir-al- 
Mannan, Shaikh Makhdom Ismail Faqila al-Sakkari al-Siddiqi (d. 949/ 
1542) and Makhdum Shaikh Zain-ud-din (d. 928/1522), who could have 
exerted an influence on the intellectual circles of the northern India, or 
obliged the Flanafite scholars to study the Shafe'ite system of 
jurisprudence. Even those scholars of India who happened to undertake 
a journey to Flijaz for the study of hadith, preferred to receive education 
from the Flanafite scholars, mostly those who had migrated there from 
India or Afghanstan. Flijaz was then included in the Turkish dominion 
whose dominant juristic school was Flanafite since the Turks also 
belonged to that school. Shah Waliullah was the first scholar from India 
whose chief tutor was the great Shafe'ite scholar Shaikh Abu Tahir Kurdi 
Madani. Shaikh Abu Tahir left a lasting impression on the Shah because 
of his depth of knowledge, personal charm, spiritual perfection and 
breadth of vision. The Shah has spoken of his tutors in Hijaz in the Insan 
al-ayn. They include Shaikh Taj-ud-din Qala'i who was a Flanafite 
scholar of hadith but his another mentor Shaikh Muhammad Wafd Ullah 
b. Shaikh Muhammad b. Muhammad b Sulaiman was a Malakite. 
During the time the Shah remained in Hijaz the leading scholars and 
teachers, particularly those of hadith originally belonged to Yemen or 
Kurdistan who were mostly Shafeite's All these factors contributed to 
acquaint the Shah with jurisprudence and distinctive features of the 
Shafe'ite school. Similarly, he got an opportunity to make himself 
informed of the Malikite and Hanbalite systems which had not been 
available to any earlier Indian scholar owing to geographical, political, 
and cultural reasons. This made a comparative study of the different 
juristic schools easier for the Shah in comparison to his predecessors. 
The Shah left for Hijaz in 1143/1730, when he was 30 years of age, after 
spending 12 years in the profession of teaching. He was, however, gifted 
with a bent of mind pre-disposed to an undogmatic attitude and 
reconcilation of differences, aptly expressed by the mystic Rumi in one 
of his couplets: 

You have come to bring communion. 

And not to make separation. 



Haz.Shah Wali Allah in the mirror of his juristic views and services 


17 


He had already made up his mind to strive for bringing about a 
greater conformity between the hadith and the fiqh and it was for this 
reason that he had started giving preference to the juristic opinions of 
the hadith scholars over those of different schools of jurisprudence. He 
had written in Al-Juz al-Latif fi-Tarjumata al-'Abd Zaief 

An study of the four juristic schools and their principles of 
jurisprudence as well as the ahadith on which they base their arguments 
has led me to prefer the juristic findings of the hadith scholars. This 
inclination was backed by divine influence. Thereafter, I was seized with 
a longing to make the pilgrimage to the two sacred Mosques." 

The Shah disliked the approach of narrow-minded followers of 
the different juristic schools (who never allowed even the least deviation 
from their stand) as well as the Zahiriyah sect (which rejected the filth 
and denounced the founders of juristic schools despite their depth of 
learning and piety). He criticized both these groups decrying them as 
extremists and guilty of immoderation. He held that the 'truth was in- 
between' : neither the former were absolutely correct nor the latter. In 
the Hujjat Allah al-Baligha he writes : The basis for juristic deduction, on 
the one hand, and following the hadith literally, on the other, are both 
grounded in true religion and scholars have at all times acted in 
accordance with both these principles It is only that some have attached 
a bit more importance to the deductive approach than to the literal 
adherence of the hadith while others have taken a contrary course. It is 
not at all proper to ignore either of these principles to which 
commonality of both the groups is accustomed. The right course in this 
matter lies in bringing about a reconciliation between the two so that 
what is wanting in one is made up by the other. This was the view held 
by Imam Hasan Basri " The Shah also writes in his Wasiyat Namah : 

"Scholars who are well-versed both in the fiqh and hadith 
should be followed in petty matters, but the majorjuristic issues should 
be constantly checked with the Book of God and hadith of the Prophet 
(peace be upon him)." 

Again he says : 

"It is necessary for the Muslims to keep on correlating the 
rulings based on analogical deduction with the Qur'an and the hadith 
for they can never afford to be unmindful of it." The Shah had been 
mentally and educationally groomed in an atmosphere pervaded by the 
Hanafite school of jurisprudence and therefore he was conversant as 
well as appreciated the distinctive features of that school like any other 



18 


Haz. Shah Wali Allah in the mirror of his juristic views and services 


scholar belonging to it. He acknowledged its merits and wrote on 
different occasions that owing to various historical, intellectual, political 
and cultural developments the Hanafite (as well as Shafeite) fiqh had 
come to receive greater attention, it was more polished and had a unified 
sequence, more commentaries on it were written and better exposition of 
its principles was made then could be claimed for any other juristic 
system. He wrote about Imam Abu Hanifa : 

"Imam Abu Hanifa occupied a very high place in the ijtihad 
(interpretation) and istanbat (application) ) of law adopted by the school 
of jurists like Ibrahim. Nakha'i and other equally eminent scholars. In his 
interpretations he has shown a deep insight in bringing out the rationale 
and reasons for his legal opinions. He took keen interest in working out 
the details of specific juristic issues." 

At the same time, the Shah held Imam Malik in the highest 
regard and considered his Muwatta as one of the most authentic 
collections of hadith, which was in his view an indispensable work on 
the subject. 

On the other hand he paid tribute to the thoroughness and 
clarity of the Shafe'ite school, held it as nearest to hadith and 
acknowledged the perspicacity of Imam Shafe'i. 

In regard to Ahmad ibn Hanbal, the Shah writes in the Hujjat 
Allah al-Baligha: 

"Among these jurists and traditionists, the one most eminent, 
outstanding in his knowledge of hadith and having a deep insight in 
juristic matters was Imam Ahmad ibn Hanbal while Is'haq b. Rahuyah 
occupied the place next to him " 

The Shah had cultivated a moderate and balanced view by going 
through the works and biographies of the founders of all the four juristic 
schools which had made him realise their deep knowledge and vision in 
religion as well as the great services they had rendered to the Muslims. 
This could not be expected from the scholars who had remained 
attached to a particular school and were unable, for various reasons, to 
step beyond the limits of their own juristic school. 

The Moderate View 

A distinguishing feature of Shah Waliullah's revivalist 
endeavour which was the result of his instinctive perception, was the 
moderate and balanced approach he had adopted in regard to ijtihad 
(individual reasoning) and taqlid (the unquestioning acceptance of the 



Haz.Shah Wali Allah in the mirror of his juristic views and services 


19 


rulings of earlier jurists of one's own school). The Shah's approach in this 
matter showed his strong common-sense, realism and discernment. On 
the one hand, there were scholars who deemed it incumbent on all 
Muslims, whether a scholar or a commoner, to follow the Qur'an and 
Sunnah and to derive legal rulings directly from these sources. They 
considered taqlid to be forbidden. This way of thought, though not 
explicitly spelt out by them, is the logical conclusion of the views 
expressed in the writings of the scholars of this school, headed by 
'Allama Ibn Hazm among the earlier academicians. But this was 
impracticable since it was beyond the competence of every Muslim to 
exercise individual reasoning in legal matters. 

On the other hand, there were those who considered taqlid 
obligatory for every Muslim and held the opinion that the least 
deviation from it amounted to waywardness and errancy almost in the 
same way as the former group deprecated taql-id of any particular 
school of jurisprudence. Those who favoured taqlid closed their eyes to 
the fact that the adoption of any particular juristic school was just a 
means to keep the common people away from following their own 
whims and personal predilections, to protect the Muslim society from 
confusion and anarchy, to bring about orderliness and uniformity in 
religious observances and, finally, to make it easier for the common 
people to abide by the injunctions of the shark ah. But they took the 
means for the end and insisted on it so dogmatically that the entire issue 
which pertained to legal methodology was ossified as if it were an article 
of faith, abiding and immutable. 

The viewpoint of the Shah in this regard was nearer to the spirit 
of shark ah. He drew inspiration from the practice followed in the earliest 
era of Islam which showed greater practical sense and feasibility since it 
met the demands of human life and psyche. In a chapter dealing with 
the practice followed by the people upto fourth century A.H. and 
thereafter in the investigation and scrutiny of religious issues he has 
given in the Hujjat Allah al-Baligha a detailed account of the method of 
legal inquiry of those times. 

Legitimacy of Taqlid 

Taking a reasonable, detached and realistic view in the matter, 
the Shah considered taqlid justified for the man who followed a 
particular juristic school or one of the great jurists in order to give 
allegiance to the holy Prophet and his Shari'ah, in case he found himself 



20 


Haz. Shah Wali Allah in the mirror of his juristic views and services 


incompetent to discover religious injunctions or what was attested by 
the Book and the sunnah. There can be several reasons for taqlid, said 
Shah Waliullah. One may be illiterate, or may not have the leisure to 
engage in study and enquiry, or may lack the resources to discover the 
directives, or else to draw any inference from them. In this connexion the 
Shah has cited Ibn Hazm's view-point that taqlid is forbidden since it is 
not permissible for any Muslim to accept the statement of anyone save 
the Prophet without adequate reason. Thereafter he writes : 

"What ibn Hazm says will not hold good for a man who does 
not give allegiance to anyone save the Prophet (on whom be peace): for, 
he considers permissible and forbidden only what has been allowed and 
prohibited by Allah and His Apostle. But, as he has not directly received 
knowledge about the sayings and doings of the Prophet (on whom be 
peace), nor he has the ability to reconcile such reports and draw 
inferences from them, he merely relies on a pious and God-fearing 
scholar with the confidence that the scholar is only an exponent and 
commentator of the Prophet's sunnah. How can this man be blamed if he 
discards the scholar the moment he comes to know that his earlier 
estimate was not correct ? How can such a man be deemed as opposed 
to the sunnah and the shari'ah ? "Everybody knows that questions have 
been asked and juristic opinions given ever since the time of the Prophet 
(on whom be peace). It hardly matters whether a man always consults 
one jurisconsult or different jurists on different occasions. How can this 
be deemed as unlawful if the intention of this man is seemly and he 
sincerely desires to abide by the injunctions of the shari'ah ? Since we do 
not maintain that Allah has sent down His Law from the heavens to any 
jurisconsult or that the jurisconsult is immaculate and obedience to him 
is a must for us, adherence to such jurist and preceptor is merely because 
we consider him to be a scholar of the Qur'an and sunnah of the Prophet 
(on whom be peace). Whatever advice is given by such an scholar will 
either be based on a clear directive of the Qur'an and the sunnah or 
derived from these in accordance with the principles laid down for it. He 
may, however, be led to believe, in all sincerity, that a certain matter is 
based on a given stipulation found in the Book or the sunnah, although 
his view may not be correct. In this case the jurist will be said to have 
unintentionally made a wrong analogical deduction, even though he 
may maintain that his opinion is based on what the Prophet (on whom 
be peace) has said about the stipulation necessary for taking that view. 
In the circumstances, his analogical deduction can be attributed to the 
directive of the Prophet (on whom be peace) as understood by him. Had 
this not been an accepted rule, nobody would have ever followed any 
jurist. But if we come to know of an authentic hadith with reliable chain 



Haz.Shah Wali Allah in the mirror of his juristic views and services 


21 


of narrators contradicting the legal opinion of that jurist or imam, and 
we reject the hadith by giving preference to the analogical deduction of 
the jurist, then who would be a greater wrongdoer than us and what 
would be our excuse when we shall tomorrow be facing God." 

Characteristics of the Four Juristic Schools 

With this sharp and judicious analysis of taqlid, the Shah also 
throws light on the wisdom of following the four juristic schools by a 
great majority of Muslims all over the world in a slim but valuable tract 
entitled 'Iqd al- Jid fi Ahkam al-ijtihad wal-Taqlid He says : 

"Remember that there is a great security in following the four 
juristic schools while a great risk is involved in rejecting them. There are 
several reasons for it. First, the Muslims have always been agreed upon 
reposing confidence on the earliest generation of Muslims in the matter 
of ascertaining the rules of shark ah. The successors of the companions 
relied on their predecessors, those who came after them on the earlier 
generations and so on. The scholars in all ages have reposed trust in 
their forerunners. Reason also commends this course for the two sources 
of knowledge of shark rah are its transmission and drawing inferences. 
Transmission is possible only when the later generation is willing to 
learn from its predecessor. For drawing an inference it is equally 
necessary that the views of the earlier generations should be known so 
that any conclusion drawn does not go beyond the sphere of its frame of 
reference and thus contravene the consensus of the Muslim community 
on any issue. Hence it is essential to rely and seek help of our 
forerunners. This is correct of all other branches of learning, arts and 
crafts, since these can be learnt only from and keeping company of their 
instructors. It seldom happens that one can acquire expertise without 
following this course; one can argue that this is possible, but actually it 
never happens. 

"Now that it is established that to repose trust in the findings 
and dictums of our forbears is essential, it becomes necessary that the 
sayings on which we have to rely have been transmitted through reliable 
sources they have been included in well-known compilations; have been 
duly examined and analysed in a way that those to be given precedence 
over others are clearly spelt out; those commonly accepted are sifted 
from others approved only by a few; the source of a directive is known ; 
its exact implication is ascertainable; different sayings are capable of 
being reconciled and the rationale of injunctions is also explicit. Any 



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juristic school and its juristic opinions lacking these conditions cannot be 
relied upon. There is not a single school of law formulated in the ages 
gone by, save these four schools, which fulfils all these conditions." 

The Shah adopted the course of moderation between ijtihad and 
taqlid which chimed with the objectives of the shark ah, human 
psychology and the realities of life. He approved of taqlid on the 
conditions that intention was seemly and proper and one was clear in his 
mind about emulating the Prophet (on whom be peace) and following 
the injunctions of the Qur'an and the sunnah. He permitted dependence 
on an scholar solely on the ground of one's confidence in his being an 
exponent and interpreter of shark ah by virtue of his being learned in the 
Qur'an and the sunnah. Such reliance was also to be accompanied by a 
willingness to discard a scholar in case the trust reposed in him proved 
to be misplaced. He held that a believer should not have the least 
hesitation in accepting a directive contained in a hadith if the opinion of 
the jurist was found to differ from it. 

"But nay, by thy Sustainer ! They do not ( really) believe unless 
they make thee (O Prophet) a judge of all on which they disagree among 
themselves, and then find in their hearts no bar to an acceptance of thy 
decision and give themselves up (to it) in utter self-surrender." 

Necessity of Ijtihad 

Shah Waliullah considered ijtihad ( interpretation or discovery 
of law from its sources within the frame-work and in accordance with 
the methodology laid down for such an exercise) essential for every age 
in order to meet the changing social needs of the time even though he 
acknowledged the distinguishing features of the four schools of Islamic 
law, paid tribute to the greatness as well as the services rendered by the 
earliest traditionist-jurists and recommended to make full use of their 
scholarly findings. He declared that to ignore these schools was fraught 
with danger and was also harmful for the community. At the same time, 
he also pleaded that ijtihad was but a natural outcome of the changes 
brought about by the march of time and hence necessary for not only the 
expansion of the Islamic law but also for the guidance of mankind in 
accordance with the divine revelation. In his view it was the duty of 
religious scholars to exert themselves for ijtihad in all times to come. In 
his introduction to Musaffa, he writes : 

"Ijtihad is a fard bil kifayah in every age. 

The Ijtihad. I am speaking of here does not mean that it should 
be of the same calibre as that of Imam Shafei who was second to none in 


Haz.Shah Wali Allah in the mirror of his juristic views and services 


23 


his knowledge of the canons for reception and rejection of hadith, Arabic 
grammar and syntax etc., and who never had to depend on any one in 
legal interpretation or drawing an inference. I mean here the affiliated 
Willed which signifies finding out the injunctions of the shari'ah from 
the original sources and interpreting and drawing inferences on the lines 
indicated by the great jurists, irrespectives of the school followed for the 
purpose. 

"And when we say that ijtihad is incumbent during the present 
times (and there is a consensus among scholars on this point), it is 
because new issues crop up rapidly and they cannot be encompassed 
beforehand. It is essential to know the command of God about such 
matters, for what has already been written or compiled on the subject 
may be insufficient or likely to give rise to controvercies. Such issues 
cannot be solved without reexamining the arguments given therefor. 
Certain rulings handed down from the great jurists are also intersected 
and cannot be fully relied upon. Therefore, these matters cannot be 
solved unless the issues are reexamined in accordance with the metho- 
dology laid down for legal reasoning and a fresh examination of the 
issues." 



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Haz. Shah Wali Allah in the mirror of his juristic views and services 


CHAPTER-11 

People's estimation of the Shah as 
mujtahid-e-muntasab 

In addition to the views just mentioned there, there are many 
noted men of Islamic scholarship who described him as Imam, though in 
our common parlance the use of such terms is not essentially intended to 
cover all of their technical connotations in the strict sense of the words. 
Such expressions are rather used to recognize the wide-ranging religious 
services of such epoch-making and revolutionary persons of the Islamic 
history who exerted great ideological influence on a greater part of the 
Ummah through their achievements in different areas of Islamic 
scholarship. There are of course more than one great Muslim scholars 
who regard the Shah as mujtahid in the technical sense of this juristic 
term and see his great services towards the Islamic learning from the 
same angle of vision. The scholars of the Arab world who have lately 
edited al-Musawwa, the Shah's celebrated commentary on al-Muatta of 
Imam Malik and got it published from Darul-kutubil Ilmiya, Beirut, 
have declared him the mujtahid mutlaq muntasib in their brief prefatory 
note to both the book and his personality. Nevertheless, those Arab 
scholars have associated his intisaab to both the Hanafi and Shafie 
schools. The reason, according to their view, being that his teaching and 
learning services included both the schools. One more reason is that the 
Shah has conducted a very realistic comparison between the contrastive 
juristic opinions of the earlier mujtahidin. 

This Concept actually takes its base from those texual 
expressions of the Shah in which he associates his juristic ideology with 
the methodology of ijtihaad and ideology of those traditionists who 
were gifted with high juristic acumen and kept both the ahadith and the 
juristic interpretations before them and put them to the test of the 
Qur'an and Sunnah, the only primary sources and bases for all the 
commands of the Shariah. This methodology of juristic interpretations 
has been held preferable by the Shah. After an exhaustively detailed 
critical evaluation of the viewpoints and methologies of both the Ahlul- 
Hadith and of Ahlur-Rai in his magnum opus Hujjatullalul-Baaligha, he 
has decisively written that on a moderate and truth-seeking scholar of 
Islamic jurisprudence it was incumbent -to reconcile both viewpoints and 
benefit from both the methologies and the ways of thinking. 



Haz.Shah Wali Allah in the mirror of his juristic views and services 


25 


In his autobiography, al-Juzul-Lalif fi Tarjimatil Abdil-Zaif he has 
reaffirmed his same viewpoint in the following words: 

"After studying deeply the principles of jurisprudence of the 
four schools and the foundations of their argumentations my disposition 
got inclined to the methodology of those jurisprudents who combine it 
with hadith. My this inclination received support from the Unseen as 
well. After adopting this approach a deep enthusiasm to visit the 
Haramain Muhtaramain(the two great Masjids of Makkah and Madinah) 
developed in me." 

(p.203, 204 Quoted from the edition of his biography combined with 
Anfasul-Arifin) 

In his testamentary advice, written in Persian language, he laid 
emphasis on the same thing. To quote his words. 

"In the detailed juristic issues the Ulama to be followed are those 
who have combined both the jurisprudence and hadith in their 
scholarship; and the juristic problems solved through analogical 
reasoning must always be put to the Book of Allah and the hadith of His 
Messenger (peace be upon him) for verification." 

He further says: 

"The Uinmah is never independent of putting the juristic deductions to 
the test of the Book and the Sunnah and hadith of the Messenger." 

(Abid Hasan Ali Nadvi: Tarike Dawat-o-Azimat Vol. 5 P 202-3) 

In his celebrated book Iqdul Jeed fi Ahkamil-Ijtihaad wat-Taqlid the 
Shah has elaborately discussed the definition, conditions and the range 
of the juristic services of the mujtahid mutlaq muntasib. To reproduce the 
gist of the long discussion in his own words: 

"The long and short of it is that he (mujtahid mutlaq muntasib) must 
combine in himself the knowledge of hadith, Fiqh, transmitted from the 
principal men of jurisprudence, and the knowledge of the principles of 
jurisprudence, much the same as have been the great men of the Shafie 
school. According to our inductive reasoning the most outstanding 
feature of this methodology is that the juristic interpretations received 
from ther earlier great jurists, that is. Imam, Malik, Shafie, Abu Hanifa, 
Thori and the mujtahids of the rank whose schools of jurisprudence 
generally met a wider reception on the part of the Ummah, should be 
put for verification to the authentic books of hadith like Mu'atta of 
Malik, Bukhari, Muslim, Tirmizi, Abu Dawood, etc. The deductions and 



26 


Haz. Shah Wali Allah in the mirror of his juristic views and services 


interpretations consonant with the ahadith clearly or impliedly, should 
be accepted ; those clearly contradicting with the ahadith should be 
rejected outright. In case of a disagreement in the ahadith analogical 
reasoning should be applied to bring harmony between the ahadith and 
the juristic interpretations." 

According to the Shah Sunnan Baihaqi, Ma'alim al-Sunnan and al- 
Baghwi's Sherh al-Sunnah offer the best example of this research 
methodology and analogical reasoning. He further says: 

"This being the way of the first-rate-scholars out of the legist 
traditionalists, though such people are extremely rare. They are other 
than those literalist-traditionists, who do not admit of the concepts of 
analogical reasoning and consensus. Likewise, they are other than those 
earlier traditionists who cared little for the juristic interpretations 
worked out and advanced by the mujtahidin. Still, they are 
comparatively more akin to the hadith scholars. 

For they critically analysed and evaluated the juristic interpretations of 
the mujtahidin as they did with the interpretations of the Companions 
and the Followers." 

Such are the writings of the Shah which form the basis for building such 
concepts about him and his services towards the knowledge and legacy 
of Islam. Some out of those holding him as mujtahid mutlaq muntasib 
have referred to the same methodology of research adopted by the Shah. 
This makes us believe that this estimation of the people about the Shah is 
priomarily based on such writings scattered about the books of Haz. 
Shah Wali Allah. For example, we are citing here the words of Shaikh 
Abdul Hai, the noted historian of the past century. 

"The Shah dived deep into all the four schools of Islamic 
jurisprudence and the principles of Fiqh and conducted a through study 
of the ahadith constituting the source material for their juristic 
interpretations and legal rulings. (A1 - Ilam biman fil-Hind min al 
Alaam, Vol 6,P.411, Rai Bareili Edition) 

"And with help of the light from the unseen, he chose for 
himself from all such ways the methodology of the jurist traditionists." 

The author further writes : 

"Allah cast in his heart the way to combine the fiqh with 
hadith." (op.cit) 

Casting light on Shah Wali Allah's juristic approach the group of 
the ulama woking on al- Musawwa has written: 



Haz.Shah Wali Allah in the mirror of his juristic views and services 


27 


"His juristic methodology is marked by moderation and 
temperance and combining the properly proved ahadith and athaar with 
proper reasoning between the methologies of the jurists and the 
muhaddithin." (al-Musawwah, commentary on al-Mu'atta, P. 8) 

The author of Hayat Wali (a biography of Haz. Shah Wali Allah) 
did not discuss the Shah's juristic methodology, yet at a place in his book 
he has cited much the same statement of the Shah with reference to al- 
Juzul-Latif in the following words. "Finally, I turned satisfied with the 
methodology of the jurist-traditionists and I adopted it." (Hayat Wali P. 
422) 

However, in accepting this opinion we face a lot of problems. 
The major problem arises from the most typical position of the case. The 
people belonging to this specific class are extremely rare in the entire 
Islamic history. To be credited with such a position of higher rank a 
person needs to have extraordinary work on fiqh and its principles and 
fatawa and wide ranging services to his credit. Undeniably, the services 
of the Shah towards the overall Islamic scholarship are unequalled 
covering a wide variety of subjects: his genius and the renovative 
character of his work and its distinctiveness is acceptable without any 
reservation. Still, in spite of all that his work in the area of fiqh, 
principles of fiqh and fatawa is too short, primarily of rudimentary 
character. It is not so detailed, deep and wide, both in quantity and 
quality, as to attract the title of this higher rank for him. As regards the 
Shah himself, he has a fuller perception of the greatness and delicacy of 
this position. He is fully aware of the fact that throughout the long 
history of the Ummah this grade has been assigned only to fewer men of 
Islamic scholarship. Making mention of some very exceptional ulama of 
the Shafie school for the illustration of his opinion he has himself 
written. 

"Though the people of this grade are seemingly numerous, yet 
in reality, considering all other related facts, the number of such people 
is scanty indeed. (Iqdul Jeed, P. 40) 

Towards the end of this discussion he makes mention of the 
fuqaha-muhaddithin like Baihaqi and Baghwi and says: 

"Fewer they are indeed." 

His constant and repeated reminding the people of the 
extraordinary importance of the position of interpretation amply speaks 
of the fact that he regards it extremely delicate and critical and about his 



28 


Haz. Shah Wali Allah in the mirror of his juristic views and services 


own self is completely free from making any claim or feeling any right to 
the office of the kind. As it is evident from all of his writings, the Shah 
shows no type of undue modesty or humility as he has clearly expressed 
himself and has shed light on the value and nature and position of his 
works and religious services. Examples follow: 

"When I completed the task of exposing the secrets of the 
teachings of Islam and unveiling the rationale of the commands and 
prohibitions of the Shari' ah, Allah ta'ala invested me with the robe of 
renovation whereby I turned able to reconcile the juristic differences." 
(T at himat-e-Ilahiyah) 

Allah ta'ala has bestowed on me the honour of the renovator of 
the religion, Wasi and qutb of my age. If Allah writing, my endeavours 
will bring new life to the wretched muslim Ummah." (Zafarul- 
Muhassilin P. 57, with reference to Tafhinaat) 

The office of the religious renovation is that the renovator 
undertakes the task of interpreting the commands of the Shariah and the 
legal system of Islam strictly in accordance with the book of Allah and 
the Sunnah of His Messenger without subjecting it to analogy. In 
carrying out the task he makes a fuller use of the oral and practical 
interpretations transmitted to us from the Companions and their 
immediate followers. 

As regards the position of Wasi, the Wasi arranges commands 
and the prohibitions in lines with the Best Model of the Messenger and 
his sayings. 

As of the Qutb, his task is to reveal to mankind the ways of 
pleasing Allah in his contemporary set of requirements and 
circumstances. 

From among the special favours of Allah on me is that He has 
made me the leader, wise and the interpreter of His will in this last age. 
(Tafhimate) 

"In my mind it has been cast by Allah that I should 
communicate this fact to the people that the present age is of mine, this 
time belongs to me, unfortunate indeed being the person who refused to 
come under my banner." (Op. cit.) 

"I had a dream that I had been given the position of Qaimuz 
Za,ama, That is. I'm a tool in the hand of Allah to carry out His will of 
bringing a good system to the world in the present age." 

(Fuyuzul-Haramain) 



Haz.Shah Wali Allah in the mirror of his juristic views and services 


29 


CHAPTER-UI 


A brief descriptive survey of Haz. Shah Wali 
Allah's epoch-making achievements and great 
reformative services to the overall academic 
enterprise of his contemporary world of Islam 
and of the influence he exerted on subsequent 
Muslim generations 


Shah Wali Allah lived at a time when the decline of the political 
power of Muslims in the Subcontinent had reached alarming 
proportions. Shah Wali Allah was fully aware of this and had given 
much thought to it. In his assessment, the following two facts were vital 
for understanding the predicament of the Indian Muslims in his time : 

1. Muslims seemed to be heading towards disintegration because the 
factors which had earlier created a reasonable degree of inner 
cohesion and solidarity among them were falling apart. 

2. Muslim intellectuals were becoming impoverished as a result of the 
decay of Islamic education and Islamic scholarly tradition. 

Keeping in his view these two factors, the long-term strategy of 
reform Shah Wali Allah pursued for the resurgence of religious 
consciousness and. Intellectual development of Muslim community 
consisted mainly of seven important corrective measures that he 
proposed and applied with full vigour : 

1. The foremost thrust of his reform aimed at a return to the 
pristine purity of Islam by vigorously linking Muslim 
scholarly tradition with the Qur'an and the sunnah . He 
made almost the first ever attempt to a lucid translation of 
the Qur'an into lucid Persian - the lingua franca of the 
Muslims of the Subcontinent. He thereby sought to 
disseminate the message of the Qur'an among the rank and 
file of the Muslim community instead of keeping it confined 
to the academic concerns of specialists. He also initiated a 
new tradition in the teaching and learning of Hadith. In this 
field of Islamic scholarship, which Shah Wali Allah rightly 



30 


Haz. Shah Wali Allah in the mirror of his juristic views and services 


reckoned as the fountainhead of all authentic Islamic 
knowledge and practice, he added the horizontal to its 
vertical dimension. For while the former consisted of an 
assimilative, integral and total approach to the 
understanding of the Prophet's mission, the latter approach 
was a somewhat reductionist approach to the study of the 
Prophet's traditions, taking each one of them as a single unit 
of religious knowledge and instruction, without necessarily 
attempting to look at matters from the perspective of the 
totality of the Prophets teachings. Further, Shah Wali Allah 
emphasized the core of the actual message contained in the 
ahadith of the Prophet (Peace be upon him) along with the 
examination of the authenticity of the text of the traditions, 
taking a critical note of its linguistics, its semantics and the 
credibility of its transmitters. 

2. Shah Wali Allah was perhaps the first exponent of Islam 
who clearly asserted that discerning the deeper and subtler 
layers of meaning and lavels of message underlying the 
Prophet's traditions constituted the 'kernel' of the Hadith, 
while all the discussions relating to the transmission and 
hermeneutics of their texts were merely its 'Peel'. The 
former was termed by him as ‘ilm asrar al-din (the science of 
the subtle meanings of religion'). To implement this idea of 
shifting the focus in the Hadith sciences, he wrote a number 
of commentaries on the major compendia of Hadith, 
especially Bukhari's al-Sahih and Malik's Muwatta'. 

3. Shah Wali Allah made an earnest effort to introduce a 
holistic approach to the understanding of Islam by 
reconciling the apparently divergent insights provided by 
spiritual, rational and initiutive points of view into a unified 
vision of the reality. He thus tried to show a 
complementarity and concord between the points of view 
that had been seen in the past as exclusive approaches and 
had set their votaries unneccessarily apart. At the same time, 
he employed his masterly skills in synthesizing the views of 
the so-called traditionalists and rationalists in their 
interpretation of Islamic belief and praxis. He wrote a 
number of treatises to highlight the methodology of arriving 
at the underlying unity in the apparent diversity of 
individual opinions. 



Haz.Shah Wali Allah in the mirror of his juristic views and services 


31 


4. Shah Wali Allah tried to link his understanding and 
exposition of Islam with the practical problems of his milieu. 
In this regard, he pleadedto shift the focus of the academics 
from speculative, theorotical and abstract issues occupying a 
large space in the Muslim academic tradition to the concrete 
problems relating to the current existential conditions of the 
community. The best specimens of his writings that reflect 
this trust of his thought are his epistles that he sepcifically 
addressed to people of note representing different strata of 
the Indian Muslim community-rulers, scholars, preachers, 
and sufis. 

5. Shah Wali Allah also tried to deal a powerful blow to the 
influence of the divisive and conflictual approaches that had 
been increasingly surfacing in the Muslim academic 
tradition and absorbed the attention of large numbers of 
Muslims. He developed a methodology of his own in 
dealing with the variant points of view that constituted the 
dividing lines between various legal and theological schools, 
religious sects and spiritual orders. He thereby attempted to 
demonstrate that the apparent differences of opinion were 
traceable to an essential unity of purpose and a common 
vision of life rooted in the Qur'an and the sunnah. He tried to 
understand the 'intent of the law-giver' in prescribing 
particular edicts in specific contexts. Once the central 
objective was clear, the differences of opinion arising out of 
the temporal human understanding of those edicts were 
naturally relegated to the periphery. In this way, Shah Wali 
Allah brought the emphasis back from te minor points of 
variation to those central and substantive elements in the 
corpus of Islamic edicts that supplied the much-needed 
unifying factor for the religious and cultural cohesion of the 
community. 

6. He developed a new approach in understanding and 
interpreting the texts of the Qur'an and the sunnah by 
probing into the socio-economic, political and psychological 
conditions prevailing in the Arabian society at the time. He 
thought that without taking into consideration these 
particular circumstances, it would not be possible to 
determine the true signification of these texts. In this way, 
Shah Wali Allah tried to moderate the accumulative effects 



32 


Haz. Shah Wali Allah in the mirror of his juristic views and services 


of the past leteralism in comprehending the religious texts 
and applying them to the changing conditions of human life. 
In this regard, he clearly distinguished between the 
constants and the variables in the body of commands 
furnished by the Qur'an and the sunnah. Moreover, Shah 
Wali Allah not only extensively practiced the modes of 
ijtihad himself, but also vehemently pleaded for its 
operationalization wherever it was warranted by the 
changed circumstances. In fact as Marcia Hermansen, a 
contemporary authority on Shah Wali Allah, has rightly 
remarked that the innovations in the Islamic thinking of this 
great thinker provide another evidence of the continuity in 
the functioning of ijtihad as a principle of movement in the 
structure of Islam. 

7. Shah Wali Allah also attempted to orient the Muslim 
scholarly tradition to establishing a channel of 

communication with non-Muslims. He did this by 
developing a new scholastic tradition in ‘Ilm al-kalam' which 
relied more on inductive logic than on the deductive 
methods of thinking. Inspired by one of his spiritual visions, 
he had prophesied that "the law of Muhammad would shine 
forth in this age by being presented in long and loose-fitting 
robes of demonstrative proof". In this way, the discourse of 
Islamic thought initiated by Shah Wali Allah and later 
developed by his descendants and disciples was made 
progressively more comprehensible to non-Muslims. This 
was because it was anchored in the dialectics that were 
based on commonly acceptable premises. By introducing 
this particular element in Islamic thought, Shah Wali Alla 
could rightly be regarded as the precursor of a reformist 
scholastic tradition in Islamic thought. 

The most important reason which could perhaps explain the 
singular success achieved by Shah Wali Allah - a success that appears 
almost without parallel in recent times- was that he adopted a highly 
effective and persuasive channel of communication. This was typically 
represented by the spiritual methods of reform and modes of human 
transformation employed by the sufi masters. In this way, Shah Wali 
Allah made a direct appeal to the heart and did not confine his effort to 
mere intellectual articulation of his views. His authorship of around 
forty seminal works coupled with his teaching of hundreds of gifted 
persons was greatly reinvigorated by the supereimposing role of almost 



Haz.Shah Wali Allah in the mirror of his juristic views and services 


33 


all the living spiritual orders of his time. Last, but not the least, God's 
Grace must have touched the sincere soul of Shah Wali Allah with 
special support and blessing, and that is a major factor in every true 
seccess, both here and hereafter. 



34 


Haz. Shah Wali Allah in the mirror of his juristic views and services 


CHAPTER-IV 


A realistic assessment of the Shah 
as a Faqih, the Intellectual and 
Academician 


The true greatness of Shah Wali Allah lies not so much in his 
role as a political seer and social reformer, but in his lasting academic 
work. He perfected the scheme initiated by Shah 'Abd al-Rahim and 
Shaikh Abu'L-Riza Muhammad. Their efforts in the intellectual field 
were directed towards evolving a common tradition that could be 
adopted with equal ease by the Muslim philosopher, sufi, mutakallin 
(theologian), and jurist. They attempted to reconcile intuition, intellect, 
and revelation, so that a true, holistic Islamic outlook could emerge. 
Their legacy was enriched when Shah Wali Allah came into contact with 
Shaykh Abu Tahir al-Kurdi in Arabia; the Shaykh's approach to matters 
of the intellect was akin to that of Shah 'Abd al-Rahim. Both of them also 
traced their intellectual lineage to the celebrated philosopher, Jalal al-Din 
al-Dawwani. 

Shah Wali Allah belonged to the Hanafi school of fiqh, as did his 
forefathers. Shaykh Abu Tahir al-Kurdi, however, was a Shafi'i. This led 
Shah Wali Allah to treat the Hanafi and Shafi'i schools of fiqh with about 
the same degree of deference. Although in his home country he chose to 
follow the Hanafi school as far as practicable, he did not altogether 
dismiss the Shafi'i school. He based his study Of Hanafi fiqh on the 
works of al-Shaybani, and that of Shafi'i fiqh directly on the works of al- 
Shafi'i. Noting that both al-Shaybani and al-Shafi'i had derived their fiqh 
from Malik ibn Anas, Shah Wali Allah concluded that Malik's Muwatta' 
was the basis of all fiqh, and that all the fiqhi doctrines of the four Sunni 
schools had developed from the same roots. Since the Muwatta' had 
been compiled in Madinah, it represented the epitome of the juristic 
tradition of Madinah. This juristic tradition could be traced back to 
'Umar ibn al-Khattab. As such, Shah Wali Allah considered these four 
schools to be a commentary on the juristic approach of Umar. Hence his 
assertion in his Izalat el-Khafa that 'Umar was the absolute mujtahid (al- 



Haz.Shah Wali Allah in the mirror of his juristic views and services 


35 


mujtahid al-mutlaq), while the three imams, in their relationship to 
'Umar, were no more than mujtahid muntasib.' 

Apart from combining the schools of figh, the Shah also 
succeeded in combining the shariah and the tariqah, a process initiated 
by the Mujaddid and maintained, among others, by Shah Wali Allah's 
father. Shah 'Abd al-Rahim's approach to controversial problems was 
purely academic; his main consideration was to minimize the fiqhi 
disagreements and reconcile conflicting points of view. Shah Wali Allah 
also tried to bring about reconciliation between the different sufi orders 
in South Asia by minimizing their differences. In his person, he 
combined the four major sufi orders of the day, accepting allegiance 
(bay'ab) in the Qadiriyyah, Naqshbandiyyah, Chishtiyiah, and 
Suhrawardiyyah orders. However, as noted above, his intellectual and 
academic achievements eclipsed his mystic and spiritual attainments. 

With his immense intellectual standing, Shah Wali Allah was 
well equipped to embark upon the gigantic task of the reconstruction of 
the Islamic sciences. He had greatly benefited from the lectures on 
Qur'an delivered by his father. He considers these lectures to be one of 
the major blessings God had bestowed upon him. 

I had several occasions to study the Holy Qur'an at the feet of my father 
with deep reflection on its meanings, explanation of the occasions on 
which relevant verses or surahs were revealed, and with research in the 
exegeses and commentaries. With the help of this study, a great portal of 
knowledge and comprehension of the Truth was opened for me. 

Shah Wali Allah continued this tradition and made the Qur'an 
the basis of his entire academic work. Apart from popularizing the 
translation of the Holy Qur'an among the intelligentsia, he also 
attempted to facilitate its understanding and interpretation. His book, al- 
Fawz al-Kabir fi Usui al-Tafsir, outlined the principles to be followed in 
the interpretation of the Qur'an. In Fath al-Khabir too he discussed some 
problems of interpretation. This was the best way to acquaint the 
common man with the Holy Book, the main source of all Islamic 
teachings. Direct acquaintance with the Qur'an and the Sunnah has the 
potential to divert attention from trivial theological and doctrinal 
differences to the fundamentals of religion. Muslims in South Asia have 
traditionally tended to derive guidance relating to religious matters from 
scholars of a relatively later period rather than directly from the Qur'an 
and the Sunnah of the Prophet (peace be upon him). This attitude had 
contributed to widening the gap between various sects. Furthermore, the 



36 


Haz. Shah Wali Allah in the mirror of his juristic views and services 


fuqaha' concentrated mainly on the verses which contain 
commandments (ayat al-ahkam); their relative disregard of the rest of 
the Qur'an played a considerable role in the popular negligence of a 
direct study of the Holy Book. 

To make a break with this tradition, Shah Walil Allah translated 
the Holy Qur'an into Persian, the language of culture, education, and 
administration in Mughal India. The translation was completed in 
Ramadan 1151 AH/1738 and included in the curriculum of Madrasah-'i 
Rahimiyyah in 1156 AH/1743. Wali Allah also appended short 
explanatory notes in the margins. 

Next to the Qur'an, the Hadith and Sunnah of the Holy Prophet 
(peace be upon him) were the most important sources of Islamic 
teachings. Although celebrities like Imam Hasan Saghani and Shaikh 
'Abd Al-Haq Muhaddith Dihlavi had spent years popularizing Hadith in 
South Asia, it was only after Shah Wali Allah's efforts that this could be 
truly achieved. Imam Hasan Saghani had compiled a new collection of 
ahadith, Mashariq al-Anwar, and had tried to popularize it. Shaikh 'Abd 
al-Haq, on the other hand, considered Mishkat al-Masabih more suitable 
to be adopted as the basic collection of hadith, and, after adding 
commentaries to it, included it in the curriculum of his madrasah. Shah 
Wali Allah differed in this respect from his two great predecessors. In his 
curriculum, he adopted the Muwatta' of Imam Malik, adding notes and 
commentaries, to serve as the basic textbook of Hadith. Shaikh 'Abd al- 
Haq had written two commentaries on Mishkat al Masabih, one in 
Arabic and the other in Persian; Shah Wali Allah did the same for the 
Muwatta. 

Shah Wali Allah felt that the Muwatta' combined the method of 
the fuqaha' and that of the muhaddithin, giving his students the 
advantages of both the faqih and the muhaddith. Moreover, it is 
considered the source of at least three schools of Sunni jurisprudence by 
most scholars; Wali Allah considers it to be the basis of all the four 
schools and says that these schools may be considered commentaries on 
the text of Muwatta'. 

Shah Wali Allah also initiated a movement for the study of 
Hadith in South Asia, thus preventing it from being relegated to total 
negligence in the region, and, in fact, in the Muslim world at large. This 
contribution was greatly appreciated by the great Egyptian writer and 
thinker, Sayyid Rashid Rida (d. 1935). He says: 

If our brethren, the 'ulama' of India, had not taken care of the Hadith 
sciences in this age, these sciences would have totally vanished from the 



Haz.Shah Wali Allah in the mirror of his juristic views and services 


37 


eastern countries. Since the tenth century Hijrah, the Hadith sciences had 
begun to weaken in Egypt, Syria, Iraq, and Hijaz. When I migrated to 
Egypt in 1351/1932, I saw that the speakers and the imams of the 
Egyptian mosques, al-Azhar, and others quoted unauthentic ahadith 
without making any distinction between the weak, the unknown, and 
the fabricated. The same was the case with the preachers, teachers, and 
authors. 

The preservation of Hadith, initiated by Shah Wali Allah; 
resulted in unprecedented efforts in the teaching and writing of Hadith, 
which has continued for the past two hundred years. Almost every 
noted scholar and teacher of Hadith in South Asia traces his academic 
genealogy to Shah Wali Allah. Thus, Mirza Hasan 'Ali Saghir (d. 1839), 
Shaikh 'Abd al-Ghani (d. 1878), Shaikh Muhammad Muhiddith (d. 1879), 
Maulana Faiz al-Hasan Saharanpuri (d. 1887), Miyan Seyyid Nadhir 
Husain (d. 1902) Maulana Rashid Ahmad Gangohi (d. 1905), Maulana 
Khalil Ahmad (d. 1927), Maulana Anwar Shah Kashmir' (d. 1933), 
Maulana Muhammad Yusuf Banuri." (d. 1977) and Maulana 

Muhammad Zakariyya (d. 1982) all belonged to Wali Allahi tradition. So 
does the present writer, through his teachers, i.e., Maulana 'Abd al- 
Shakur, Maulana 'Abd al-Rahman, and others. Maulana 'Abd al-Shakur 
was a disciple of Maulana Khalil Ahmad, the author of the celebrated 
work on Hadith, Badhl al-Majlhud fi Hall Abi Dawud and a student of 
Maulana Muhammad Mazhar Nanautavi (d. 1858). 

Shah Wali Allah's most original contribution is the philosophical 
reconstruction of the science of Hadith, which he calls the science of the 
secrets of the Faith (Tim Asrar al-Din), a science that discusses the 
beneficent considerations underlying the divine commandments, their 
wisdom and rationale. To him, this science, which is in fact the 
philosophy of Islam reconstructed, is the most difficult and intricate of 
all Hadith sciences, as well as the foremost and the most sublime of all 
the religious disciplines of Islam. A deep study of this science gives an 
insight into the underlying wisdom of the shark ah. It has the same 
relationship with Hadith literature as prosody and metrics have with 
poetry, as logic has with philosophy, or as jurisprudence with the corpus 
juris and the bulk of legal literature. Shah Wali Allah says that very few 
people have delved deeply into this science; very few people have tried 
to formulate generalizations in the shark ah. Only men like al-Ghazali 
and al-Khattabi have written on the subject. Shah Wali Allah's thinking 
on it has been expounded in his magnum opus, Hujjat Allah al-Balighah. 
In his view, the exposition of the wisdom and rationale of the 



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Haz. Shah Wali Allah in the mirror of his juristic views and services 


commandments of the shari' ah would protect it from corruption and 
encroachments thus preserving its integrity. 

Shah Wali Allah's philosophy can be regarded as a bridge 
between the medieval and modern eras of Islam in South Asia. Freeland 
Abbott compares him with Dante in this respect. Wali Allah's 
contribution in assimilating the various strands of the Islamic tradition 
and in presenting this synthesis in a systematic form was to prove 
invaluable for the Muslims. 



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CHAPTER-V 


Some Juristic views and Discussions 
of Haz Shah Wali Allah 


After determining the Shah's position as jurist it seems in order 
now to go through some important juristic views of Haz. Shah Wali 
Allah. By so doing we wil be in better position to properly assess and 
understand him as a rennorator of Islam and grasp with fair detail his 
valuable contribution and rennovatory services he could accomphish in 
the sphere of Islamic fiqh and jurisprudence. 

Linking Fiqh to its original sources 

The most important and for reaching service he rendered to the 
Islamic fiqh was that he vociferously laid great emphasis on linking it to 
its original sourlegal rulings must not remain limited only to some 
traditional books comprising chiefly in the opinions of the past jurists It 
rather, has to be linked to its base sources explaining simultanecously 
how the fiqhi principles and legal rulings have been extracted. 

In his historic work, Hujitullahil Baligha, the Shah has dealt in 
fair detail how legal rulings ar derived from the hadiths of the Holy 
Prophet (SAWS). This important point has been discussed in the 
following chapter. 

The Way the Ummah Received the Divine Law from 
the Prophet (SAWS) 

Be informed that the community received the divine law from 
the Prophet in two ways. 

1) The first of them is overt reception, which must be through a 

transmission which is either handed down from the beginning 



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by a large number of continuous channels (mutawatir) or non- 
mutawatir. 

a) The mutawatir report may be word for word such as 
the great Qur'an or like a small portion of the hadiths such as the 
Prophet's, (may the peace and blessings of God be upon him) 
saying, "You will see your Lord.'" Or it may be a mutawatir 
report which has been handed down according to its meaning 
such as many of the rules of purity, prayer, the alms tax, fasting, 
the pilgrimage, buying and selling, marriage, and making war; 
about which Muslims do not differ with one another. 

b) Next there are the non-mutawatir reports of which 
the highest level are the mustafid, and these are things reported 
by three or more of the Companions, then the transmitters 
continued to increase until the fifth generation, and this is a type 
of report found in great numbers, and on it are based the chief 
issues of jurisprudence. 

c) The next category are the reports (khabar) judged 
sound (sahib) or fair (Hasan) according to the hadith scholars 
known for their having committed many hadiths to memory, 
and the great ones among them. 

d) Next there are reports about which there is some 
controversy (among hadith scholars), so that some accept them 
while others do not. Those hadiths among them which are 
supported by parallel transmissions, or by the opinion of most of 
the knowledgeable scholars, or by clear understanding, must be 
acted upon. 

2) The second way of receiving the divine law is through 
indication (dalala), and this is that the Companions observed the 
Prophet, may the peace and blessings of God be upon him, speaking and 
acting, and then they derived from that a ruling of "obligatory" and other 
rulings, so that they informed about that ruling, saying, "Such and such 
a thing is compulsory, while some other one is simply permissible." 
Then the Successors likewise accepted this from the Companions, and 
the third generation recorded their legal opinions and judgments and 
strengthened the matter. 

The greatest ones in this type (receiving through indication) are 
'Umar, ' Ali, Ibn Mas'ud, and Ibn 'Abbas, may God be pleased with them, 
but it is known that the conduct of (Umar, may God be pleased with 
him, was to seek counsel from the Companions and debate with them so 
that the ambiguous would become clear and assurance would come 



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from that. Most of his legal opinions and judgments were followed in 
the East and the West of the earth, and this is the saying of Ibrahim. 
When 'Umar died, "Nine-tenths of knowledge has departed," and the 
saying of Ibn Mas'ud, "'Umar was such that if he set us on a road we 
found it to be smooth." 'Ali, may God be pleased with him, usually did 
not consult, and most of his decrees were issued in Kufa, and usually 
only a few people reported them from him. Ibn Mas'ud was in Kufa, and 
his legal opinions were generally reported only by the people of that 
region. Ibn 'Abbas used to use independent reasoning (Ijtihad) after the 
era of the first Muslims and contradicted the latter in many rulings, and 
his companions among the people of Mecca followed him in this, so that 
most of the Muslims did not adopt those of his rulings which were not 
supported by other rulings. As for other than these four, whose 
transmission of hadiths was on the principle of using an indication, they 
didn't distinguish the pillar and the condition from the manners and the 
practices of the Prophet, and they only had a little to say when there was 
conflict among hadith reports, or an incompatibility of indications, such 
as Ibn 'Umar,' 'A'isha, and Zaid Ibn Thabit, may God be pleased with 
them. The greatest in this type of receiving (through indication) among 
the Successors of Medina were the seven jurists, especially al-Musayyab 
in Medina, and in Mecca 'Ata ibn Abi Rabah)' and in Kufa, Ibrahim (al- 
Nakha'i), Shuraih, and al-Sha'bi, and in Basra, al-Hasan. In each of these 
two ways (of receiving the divine law) there are gaps which are only 
restored by the other, and neither can manage without the other. 

As for the first (overt reception), among its defects are changes 
which entered into the reporting based on the meaning (of the hadith), 
and there is no guarantee against changes in the meaning. Among its 
faults are that the command may have been given with regard to a 
specific event, and the transmitter thought that it was a general ruling. 
Also among them are that the statement may have been made in the 
emphatic voice, in order that they would adhere to it, but the transmitter 
took it to be compulsory or for-bidding, while this was not the case. 
Therefore, whoever had legal acumen and was present on the occasion, 
inferred from the cir-cumstantial evidence the true state of the matter 
such as the saying of Zaid (ibn Thabit), may God be pleased with him, 
about the ban on the sharecropping contract and the sale of fruit before 
its proper ripening, i.e., that it is evident that this was in the nature of 
advice. 

As for (the defects of) the second type (reception through an 
indication), there entered into it the analogical reasonings of the 



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Companions and the Successors, and their inferences from the Qur'an 
and the practice of the Prophet, and their independent reasoning 
(ijtihad) was not always correct in all circumstances. Sometimes the 
hadith didn't reach one of them or reached him in such a way that it 
could not serve as a proof, so it was not acted upon. Then after that the 
true state of affairs was made know through the statement of another 
Companion, like the report of 'Umar and Ibn Masu'd, may God be 
pleased with them, about making the ablution with earth after 
ejaculation. 

Often the leaders of the Companions, may God be pleased with 
them, agreed upon something because reason indicated its benefit 
(irtifaq). On that account the Prophet stated, "You should follow my 
sunna and the sunna of the rightly-guided caliphs after me." Therefore 
this (agreement of some of the Companions) is not one of the roots of 
legislation. 

Thus, whoever has gone deeply into the reports and the 
wording of the hadith will escape from pitfalls. Since the situation is 
thus, it is necessary for the one dealing with jurisprudence to be 
proficient in both movements and well-versed in both schools, and the 
best practices of the religion are those on which the majority of the 
transmitters and the bearers of knowledge have agreed and in which the 
two methods coincide, and God knows better. 

Judging Among Divergent Hadiths 

The basic principle is to implement every hadith unless 
inconsistency would preclude acting according to them all. In reality 
there can be no disagreement, except from our perspective. Thus if two 
opposing hadiths come to light under the topic of telling about an action 
of the Prophet, so that one Companion says that the Prophet, may the 
peace and blessings of God be upon him, did one thing and another says 
that he did something else, there is no conflict; for these two may both be 
considered permissible (mubah) if they fall under the heading of habit, 
not of religious observance; or one of the actions may be recommended 
(mustahabb) while the other is permitted, since there resulted from one 
of the actions the effects of drawing nearer to God and not from the 
other; or both of the acts may be recommended or compulsory and one 
is sufficient to fulfill the other when both come under the heading of 
drawing nearer to God. The memorizers of traditions among the 
Companions have made statements of this type about many of the 
practices of the Prophet such as his performing the witr prayer with 
eleven rak'ats, or with nine or seven; and such as his praying the 



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tahajjud prayer aloud or silently. It is according to this principle that it is 
necessary to judge the case of raising of the hands at the time of ritual 
prayer to the ears or to the shoulders; and to decide among the ways of 
making the Tashahhudi of 'Umar, Ibn Ma'sud and Ibn 'Abbas; and 
concerning the witr, whether it is composed of a single rak'a or three 
rak'as, and concerning the invocations commencing the ritual prayer, 
and the invocations of the morning and evening, and the other causes 
and times. The fact that there are two (apparently conflicting) hadiths 
may indicate a way to be rid of some hardship when a case had 
preceded which caused this (hardship), such as certain features of the 
expiatory offerings, and the amount of the poll-tax for one who fights 
(against God and the Prophet), mentioned in a dictum (of the Prophet). 

Or there may be in this a hidden reason for legislation which 
categorizes as obligatory, or recommended, one of the acts at one time 
and the other at another, or requires a thing on one occasion and gives a 
dispensation in it at another, so it is necessary to study this deeply. Or 
one of them may be an ordinance as interpreted strictly (a'zima) and the 
other a dispensation; if the legal force was manifest in the first case and 
the consideration of hardship in the second. If a proof of abrogation 
comes to light, this should be upheld. If one of them is the account of an 
action and the other takes a report back to the Prophet, then if the report 
is not absolutely definitive in forbidding or compelling, nor is the report 
absolutely sure in going back to the Prophet, then both may have a 
bearing in some aspect. But if the report is absolutely definitive, bearing 
on the Prophet's, may the peace and blessings of God be upon him, 
specifying acting upon it or its being abrogated, then the contexts of 
these two hadiths should be researched. If there are two reports and one 
of them is explicit in conveying a meaning lacking in the other, and their 
interpretation is close, then this has a bearing on one of them being the 
explanation of the other. How-ever, if the interpretation is far-fetched it 
does not have any bearing on the other unless there is extremely 
powerful circumstantial evidence, or the interpretation was transmitted 
from a Companion of the Prophet who was also a man of legal acumen 
such as the saying of (Abd Allah ibn Salam about the hour (on Friday) 
when prayers are most likely to be answered, that it is just before sun- 
set, and Abu Pluraira (refuted this) by reporting that prayer was 
prohibited at this time. The Prophet had said, "No Muslim standing to 
pray asks Allah for something at that time..." Thus 'Abd Allah ibn Salam 
said, "When a person is waiting for the prayer, it is as though he is in 
prayer," and this interpretation is far-fetched and would not have been 
accepted had it not be held by a Companion possessing legal acumen. 



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What confirms an exegesis as far-fetched is that if it were presented to 
sound minds without circumstantial evidence or its without having 
undergone belabored discussion, it would not be considered plausible, 
and if it is in opposition to a manifest allusion, a clear understanding, or 
a revealed textual source, then it is not permissible at all. 

Under plausible interpretations come: 

1) The restriction of a general statement when the customary 
practice has been to apply it to certain individual cases only in rulings 
similar to this one on these certain cases. 

2) Generalizing in a situation where the customary practice has 
been not to be overly particular, such as in praising and blaming. 

3) A generalization leading to the legislation being installed in a 
ruling after the principle of that ruling has been made clear; so that this 
comes to have the force of an unqualified proposition (qadiyya 
muhmala). An example is the Prophet's saying, "On whatever (land) the 
sky pours down (rain), the zakat of one-tenth applies," and his saying, 
"There is no alms tax on whatever is below five ausuq. 

Among them (ways to deal with differing hadiths) is to reduce 
each hadith to one pattern if the anchoring reason (manat) adduced (for 
the 'ilia) and the relevance (to the judgment) attest to this, and to 
interpret both of the hadiths as making an act repre-hensible or 
indicating permissibility, in a general way, if this is possible; or 
interpreting emphasis as functioning as a deterrent factor if this has been 
preceded by a disputation. His saying, "Carrion is forbidden (hurrimat) 
you," refers to eating it, while his saying, "Your mothers are forbidden to 
you (hurrimat)," refers to marrying them. The Prophet's, may the peace 
and blessings of God be upon him, saying, "The evil eye is a reality 
(haqq)," means that its influence is proven while "The Prophet is true 
(haqq)," means he has truly been sent (by God). The Prophet's, may the 
peace and blessings of God be upon him, saying, "Error and 
forgetfulness have been removed from my community, refers to the 
(removal of the) sins which occur in these states. 

His sayings, "There is no prayer except in a state of purity," 
"there is no marriage without a guardian, and "acts are only through 
their intentions, refer to the effectiveness of these things not ensuing 
(without these factors) which the law-giver established for them. (The 
Qur'anic verse), "When you are going to perform the prayer then 
perform the ablutions" means if you are not already in a state of having 
made the ablution. These are evident, and they are not to be interpreted. 



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45 


because the Arabs used each of the words in them in this sense and they 
meant what was suitable for that context, and this is their language in 
which they do not find any words diverging from what is apparent. 

Then if two (hadiths) come under the scope of a fatwa (a legal 
recommendation) about an issue, or a judgment concerning a particular 
case, and if there comes to light a reason for legislation ('ilia) which 
differentiates between the two, the judgment is to be made according to 
this rationale. An example is that a youth asked the Prophet about 
kissing in the case of someone who is fasting and he forbade it; and 
when an old man asked, he permitted it. If the context of one of them 
and not the other indicates the existence of a need or a persistent request 
on the part of the questioner, or its being an easing of the demand for 
perfection, or the repu-diation of the person who was too strict on 
himself, then the decision will be made on the principle of (either) a 
strict interpretation ('azima) or a dispensation (rukhsa). 

If there are two hadiths which present a solution to a person in 
difficulty or indicate two punishments for a criminal or two monetary 
expiations for the one who broke his oath; then the soundness of both 
hadiths is conceivable, although their abrogation is also possible. On this 
principle is the judgment about the woman who has a prolonged flow of 
menstrual blood who was sometimes given an opinion that she should 
take a full bath between every two prayers, and sometimes that she 
should calculate menstruation as lasting the number of days usual for 
her, or its being the days when a copious flow of blood is apparent, 
according to a report. She can choose between the two, for the usual 
length of the menstrual flow and the color of the blood, both of them, are 
proper signs for indicating menstruation for the fasting person. (And the 
Prophet gave the order about) giving food (to the poor) in the name of 
the man who died and had not made up for missing his fast, according 
to a report. The doubt of the person who thinks he has erred (in counting 
the rak'ats) in the prayer may be resolved in one of two ways; either by 
trying to find out what is correct, or by counting only what he is sure of, 
according to a report. The judgment in establishing lineage may be done 
through comparing physical features or by casting lots, according to a 
report. 

If the proof of abrogation is forthcoming it must be applied, and 
abrogation can be known through the words of the Prophet, may the 
peace and blessings of God be upon him, such as his saying, "I had 
forbidden you to visit graves, but now you may visit them," or through 
recognizing the posteriority of one hadith to the other when it is not 



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possible to combine them. If the law-giver legislated a law, and then 
legislated in its place another without mentioning the first, the 
Companions with legal acumen recognized that the latter one abrogated 
the first. Or if hadiths disagreed and one of the Companions decreed 
that one of them abrogated the other, that one is presumed abrogated 
but is not conclusively abrogated. The opinion of the legal scholars, i. e., 
that whatever they found to be in opposition to the practice of their 
teachers was abrogated, is not conclusive. Abrogation in those things 
which they showed to be the changing of a ruling to another ruling, was 
in reality the coming to an end of the ruling due to the cessation of its 
reason for legislation ('ilia), or due to the cessation of its being an 
anticipated means (mazinna) of serving the intended purpose, or due to 
something arising which prevented its being a reason for legislation, or 
due to the emergence of the preference for another ruling on the part of 
the Prophet, may the peace and blessings of God be upon him, through a 
manifest revelation (wahi Jali), or through his individual reasoning — 
that is, if the previous ruling had also been arrived at through his 
independent reasoning. God, may He be Exalted, said, speaking about 
the Night Journey, "The statement which comes from Me cannot be 
altered." 

When, however, it is impossible to reconcile (two contradictory 
traditions) or to explain them by each other, and when nothing is known 
of an abrogating factor, then contradiction is established. Then, if a 
preference for one of them emerges, either due to a quality in the chain 
of transmitters in its having had many transmitters, the legal acumen of 
the transmitter, the strength of the link to the Prophet, the clear evidence 
of its going back to the Prophet, the transmitter's being the one involved 
in the affair such as the one asking for the opinion or the one being 
addressed or the one carrying out the act; or due to a quality of the text 
in its being very emphatic and explicit, or in view of the fact that the 
ruling and its reason for being legislated are more in conformity with the 
rulings of the divine law, and it being a reason for legislation which is 
strongly relevant (for the rulings) and whose effectiveness is recognized, 
or due to an extrinsic factor in its being accepted by more of the 
knowledgeable people; then this ruling will be preferred, and if not then 
both of the hadiths will have no force. This is a hypothetical situation 
which is scarcely to be found. 

The saying of a Companion, "The Prophet commanded, forbade, 
judged and gave dispensations," then his saying "we were ordered and 
forbidden," then his saying, "such and such is the practice of the Prophet, 
and whosoever does this has disobeyed Abu Qasim," then his saying, 
"this ruling of the Prophet, clearly going back to him," and the 



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Companion's using methods of independent reason-ing in 
conceptualizing the reason on which the ruling is based, or in 
determining whether the ruling was compulsory or recommended, or 
general or particular; and the Companion's saying that the Prophet used 
to do such and such a thing — is clear in indicating that the action was 
done repeatedly, and the statement of another Companion that he used 
to do something else does not contradict it. His statement, "I used to 
keep company with the Prophet and I did not see him forbidding such- 
and-such," and "we used to do it in his time," clearly represent the 
sanctioning (taqrir) of an act and do not constitute a ruling stipulated in 
either the Qur'an or the sunna. 

The wording of the hadiths may vary due to variations in the 
manner of transmission, and this is due to the process of transmitting the 
hadith according to its meaning, so if a hadith is brought forward and 
the reliable scholars are unanimous regarding its wording, then these are 
manifestly the words of the Prophet, may the peace and blessings of God 
be upon him. In this case it is possible to make an induction (istidlal) on 
the basis of something com-ing early or being later (in the text) and its 
having a "Waw" or a "Fa," and so on, concerning expressions which are 
additional to the basic meaning. If the transmitters differ with a 
plausible difference and they were of nearly equal status in legal 
acumen, memory, and number, then the obviousness (that these are the 
Prophet's words) collapses, and only that meaning upon which they all 
concur can be deduced. The majority of transmitters attended to the 
main ideas of the meaning, not to the peripheral factors, and if their 
status varies the saying of the reliable one, that of the majority, or that of 
the person most acquainted with the story should be adopted. If the 
saying of someone reliable indicates their greater precision, for example 
the transmitter's saying, "She said (' A'isha), 'He sprang up' and she did 
not say, 'he stood up', and she said, 'he poured water on his skin' and 
she did not say, 'he washed,"' then it should be accepted. 

If they disagree inordinately (on some points) and are otherwise 
close and there is no reason for preference, then the particulars in which 
they vary can be discounted. 

It the hadith which does not go back to the Prophet 
uninterruptedly, but is broken at the level of the Companion (mursal) is 
combined with circumstantial evidence, for example, it is supported by a 
hadith stopping at one of the Companions, or by a hadith whose chain is 
weak, or is made to reach the Prophet by some other hadith the reporters 
of which are different, or by the opinion of most of the knowledgeable 



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people, or by a sound analogy, or by an allusion in a revealed statement, 
or if it is known that it was transmitted by a reliable authority; then it 
(this hadith) may be advanced as an argument, but it is lower in status 
than a trace-able hadith, and if (it is not supported) then it cannot be 
used. 

Similar is the case of the hadith whose transmitter is an 
imprecise person, but against whom there is no charge, or whose 
transmitter is a person of unknown status. The preferable course is that 
it should be accepted if it is combined with evidence such as agreeing 
with an analogy or the practice of most of the knowledgeable people and 
otherwise it should not be accepted. 

If a reliable transmitter is unique in reporting an addition which 
the silence of the rest does not preclude, then this is accepted; such as in 
tracing back the mursal hadith, or adding a person in the chain of 
transmitters, or mentioning the situation in which the hadith originated, 
the cause of its being transmitted, its prolixity, and its citing an extra 
sentence which does not alter the meaning of the text. If this (silence of 
the others regarding the addition) is impossible, such as in the case of 
the addition which changes the meaning or an unusual thing which 
would not customarily have been omitted; then it is not accepted. If one 
of the Companions construes a hadith in a certain sense and has 
undertaken indepen-dent reasoning (ijtihad) concerning this, then this is 
presumed correct, on the whole, as long as no proof can be furnished 
against it (this interpretation). If ijtihad was not used then this 
interpretation is strong, as in the case where an intelligent person who is 
knowledgeable about the language specifies (an interpretation) in the 
light of related circumstances and contextual evidence. 

As for the disagreement of the reports of the Companions and 
the Successors, if it is easy to combine them through certain ways 
previously mentioned, then well and good, and if not, then two or more 
opinions may be found concerning the case under discus-sion, and 
which of them is the most correct must be investigated. Part of the well- 
kept knowledge is knowing the source of the schools of thought of the 
Companions, so make an effort and you will be granted a portion of this, 
and God knows better. 



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CHAPTER-V1 


Shah Wali Allah's position and place 
in the order of the Fuqaha and His 
approach to Fiqh and Jurispredence 


In order to determine the proper value and nature of Haz. Shah 
Waliullah's juristic works and his vast constributions to the enrichment 
of the Islamic Fiqh, it would be worthwhile to understand his approach 
to the Islamic knowledge in a general way. Only then one might be able 
to make a realistic assessment of his services and his outstanding 
academic achievements. In the light of his works a relatively more 
realistic position in the order of the outstanding personalities of Islam 
might be assigned to him.. 

Notably, the personality of the Shah is so versatile and his works 
and writings deal with so wide variety of subjects and themes. It has 
rendered this task curiously challenging. The result is that the adherents 
of all persuasions in the Indian sub continent adamentally try to prove 
him the follower of their specific persuasion and enthusiastically view 
him through their own particular prism. Strangely enough, all get 
success in finding some expressions and texual quotes in his writings of 
wide variety to support their views. For instance, Nawab Sayyid Siddiq 
Hasan Khan writes in his book Ithaaf-an-Nubala: 

"Had he (the Shah) appeared in the first era of the Muslims, he 
would have been regarded as the leader of the mujtahidin and would 
have received the title of the 'leader of the leaders." 

Zafarul -Mmuhassilin, p. 58 with reference to Ithaafun-Nubala. 

The noted Islamic historian Moulana Abdul Hai of Lucknow has 
called the Shah the Imamul Aimma and the last of the mujtahidin and in 
support of his estimate of the Shah, has quoted the opinions of his noted 
contemporaries and the men of outstanding position in the area of 
Islamic learning, 

(al-Ilaam hi man fil-Hind minal Alaam Vol. 6,P,4W) 



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CHAPTER-VII 


The Causes of the Disagreement of 
the Companions and the Successors 
Concerning Applied Jurisprudence 

(al-Furu) 


Know that in the noble time of the Messenger of God, may the 
peace and blessings of God be upon him, law had not yet been put into 
writing. The mode of investigating legal rulings at that time was not like 
the investigative method of today's jurists who make their greatest 
efforts in explaining the pillars, conditions, and principles governing' 
each matter as distinguished from other mat-ters on the basis of its 
indicant (dalil), they posit hypothetical cases which they discuss and 
formulate definitions for whatever may be definable, and stipulate limits 
for whatever may be limited, and so on with the rest of their 
accomplishments. 

As for the Messenger of God, may the peace and blessings of 
God be upon him, he used to perform ablution and the Companions 
would see his manner of ablution and imitate it without his explaining 
what was a (necessary) pillar (rukn) and what was his preferred mode of 
behavior (adab). He used to pray, and they saw his prayers so they 
prayed just as they had seen him praying. He performed the pilgrimage 
and the people noted the way he performed the pilgrimage and did as 
he had done. This was his usual way, may the peace and blessings of 
God be upon him, and he did not explain whether there were six or four 
obligatory aspects to the ablution, nor did he hypothesize that it would 
be possible that a person should do the ablution in any way other than in 
an uninterrupted sequence, so that he should rule on the soundness or 
invalidity of this, except on rare occasions. The Companions only rarely 
asked him about these things. 

It is reported from Ibn 'Abbas, may God be pleased with them 
(he and his father), that he said, "I never saw any group better than the 
Companions of the Messenger of God, may the peace and blessings of 
God be upon him. Up to the time of his death they only had asked him 



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51 


about thirteen issues, all of which were found in the Qur'an. Among 
those issues were 'They will ask you about the fighting in the sacred 
month. Say, fighting in it is a great sin;' and 'They will ask you about 
menstruation.' He (Ibn 'Abbas) said, "They only used to ask about what 
would be beneficial for them." Ibn 'Umar said, "Don't ask about things 
which have not yet arisen for I heard 'Umar ibn al-Khattab curse 
someone who asked about something hypothetical." Al-Qasim said, 
"You are asking about things which we didn't use to ask about and you 
are probing into things which we didn't use to probe into. You are 
asking about things which we didn't know about and if we had known 
them we would not have been permitted to keep them hidden." It is 
reported from 'Umar ibn 'Ishaq that he said, "Those of the Companions 
of the Prophet, may the peace and blessings of God be upon him, whom 
I have met outnumber those who had passed away before me and I 
never saw any group more easygoing in behavior and more lacking in 
severity than them." It is reported from 'Ubada ibn Bisr al-Kindi, that he 
was asked about a woman who died while among a group of people 
where she had no guardian. 1 He said, "I have met many groups of people 
who weren't as severe as you and who didn't ask about (these) issues the 
way that you do." Al-Darimi reported these accounts. The Prophet, may 
the peace and blessings of God be upon him, was asked by people to 
give legal opinions about things as they came up, so that he gave 
opinions concerning them, and cases were brought before him to 
adjudicate so that he judged them. He saw people doing something 
good so he praised it; or a bad thing, so he forbade it. Whenever he 
issued a legal opinion on something, passed a judgment, or forbade an 
action, this occurred in public situations. Similar (was the procedure of) 
the two Shaikhs (Abu Bakr and 'Umar), who when they didn't have any 
authorita-tive knowledge (Tim) about an issue would ask the people for 
a hadith of the Messenger, may the peace and blessings of God be upon 
him. 

Abu Bakr, may God be pleased with him, said, "I didn't hear the 
Messenger, may the peace and blessings of God be upon him, say 
anything about her," i.e., the grandmother, and therefore he asked the 
people. After he led the noon prayer he asked, "Did any of you ever hear 
the Prophet of God, may the peace and blessings of God be upon him, 
say anything about the grandmother?" Al-Mughira ibn Shu'ba (669/70) 
said, "I have." Abu Bakr said "What did he say?" He replied, "The 
Prophet of God, may the peace and blessings of God be upon him, 
accorded her one-sixth (as a share of the inheritance). Abu Bakr then 
asked, "Does any one else besides you know of this?" Then Muhammad 



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ibn Salama said, "He has spoken truly." So Abu Bakr accorded the 
grandmother one-sixth as a share. 

(An example of the same type is) the story of 'Limar asking, the people 
about the case of the compensation for causing the death of a foetus, 
then his having recourse to the report of Mughira; and his asking them 
about the plague, then his accepting the report of 'Abd Al-Rahman ibn 
' Awf, and likewise his having re-course to (Abd al-Rahman ibn ' Avvf s 
report in the story of the Magians; and the joy of 'Abd Allah ibn Mas'ud 
at the report of Ma'qil ibn Yasar when it agreed with his opinion, and 
the story of Abu Musa turning back from the door of ’Umar and 'Umar 
asking him about the hadith and Abu Sa'id's bearing witness in his 
favor. Examples of this are well-known and abundantly reported in the 
two Sahibs and the Sunan. 

In summary, this was his noble habit, may the peace and blessings of 
God be upon him, and thus each Companion saw whatever God enabled 
him to see of his acts of worship, legal opinions,, and judgments, then he 
committed them to memory, reflected upon them and recognized the 
reason for each thing due to the convergence of contextual evidence." 
Thus the Companions interpreted some things as being permitted and 
some as being abrogated due to textual signs (amarat) and contextual 
evidence which satisfied them. What was most salient for them was the 
sense of confidence and assurance and they scarcely ever resorted to 
methods of legal reasoning, just as you observe that Arabic speakers 
understand the meaning of a conversation among themselves as they 
become as-sured through declarations, signals and allusions, without 
their doing this consciously. The noble era of the Prophet came to a 
conclusion while the Companions were still proceeding in this manner. 

Once the Companions had dispersed among different regions 
and each one had become the exemplar for some region, new legal 
problems proliferated and questions began to arise so that they were 
asked to give legal opinions about these. Each one answered on the basis 
of his recollection of the texts or resorted to legal inference. If he didn't 
find in his recollection or what he had deduced something which could 
serve to respond he would try to figure it out based on his opinion and 
ascertain the rationale for legislation on which the Messenger of God, 
may the peace and blessings of God be upon him, had based the ruling 
in his textual pronouncements. Thus he would search for the rationale of 
the ruling wherever he could find it and would spare no effort in order 
to remain consistent with his, upon him be blessings and peace, intent. 

At this point disagreement of various types occurred among them. 



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1) Among them are that one Companion heard a ruling of a 
judgment or legal opinion while another one did not, so that the latter 
used his own opinion to do ijtihad about the case and this ijtihad could 
also turn out in various ways. 

A) One of them is that his ijtihad might turn out to concur with 
the hadith. An example of this is what Al-Nasai and others recounted 
about Ibn Mas'ud, may God be pleased with him. He was asked about a 
woman whose husband had passed away without settling her dowry 
portion. Then he replied, "I did not see the Prophet of God, may the 
peace and blessings of God be upon him, making a judgment in such a 
case," but they kept on coming one after the other and asking him for a 
month, and remained insistent. Finally he performed ijtihad based on his 
own opinion, and ruled that she should receive the dowry of his other 
wives, neither less nor more, and that she should observe the waiting 
period, and that she would inherit. Then Ma'qil ibn Yasar stood up and 
testified that the Prophet, may the peace and blessings of God be upon 
him, had ruled similarly in the case of another woman, so Ibn Mas'ud 
was overjoyed at this to a greater extent than he had been at anything 
else since accepting Islam. 

B) The second way is that there may occur a case disputed 
between two Companions and then the hadith comes to light in such a 
way that it gets accorded the rank of being highly probable (ghalib al- 
zann) so that one of them retreats from his own reasoning in favor of the 
transmitted text. An example of this is what the Imams report about Abu 
Huraira, may God be pleased with him, who held that whoever got up 
in the morning in a state of ritual impurity could not keep the fast, until 
some of the wives of the Mes-senger of God, may the peace and 
blessings of God be upon him, informed him of a hadith which was 
contrary to his opinion, so he withdrew it. 

C) The third is that a Companion comes to know of a hadith but 
not at that level which brings with it the rank of being highly probable 
(ghalib al-jann) so that he does not abandon his ijtihad, but rather 
impugns the authenticity of the hadith. An example is what the masters 
of theoretical jurisprudence relate about Fatima bint Qais who testified 
before 'Umar ibn al-Khattab that she had been divorced by the triple 
formula, and that the Prophet of God, may the peace and blessings of 
God be upon him, had neither granted her maintenance nor a dwelling. 
He rejected her testimony and said, "I will not abandon the Book of 
God24 on the statement of a woman when I don't know if she is telling 
the truth or lying. A divorced woman will receive maintenance and a 



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dwelling." 'A'isha, may God be pleased with her, said to Fatima, "Don't 
you fear God!" i.e., because of her statement, "neither a dwelling nor 
main-tenance."" Another example of this type is that the two shaikhs (al- 
Bukhari and Muslim) reported that 'Umar ibn al-Khattab held that the 
ab-lution with sand was not sufficient for someone in a state of major 
ritual impurity who did not find water. Then 'Ammar reported in his 
presence that he had been with the Messenger of God, may the peace 
and blessings of God be upon him, on a journey and had become ritually 
impure and did not find any water so that he rolled himself in the dirt 
and then mentioned this to the Prophet of God. The Prophet of God, 
may the peace and blessings of God be upon him, said, "It would have' 
been sufficient for you to have done thus," and he lightly struck his 
hands against the earth and rubbed both of them across his face and 
arms. 26 However, cUmar did not accept this and the proof of it 
according to him was not estab-lished due to a concealed defect which 
he saw in it. Later that hadith became abundantly transmitted by many 
chains after the first reporter, and the suspicion that it was defective 
faded into obscurity so that they implemented it. D) The fourth of them 
is that the hadith hadn't reached the Companion at all. For example, 
what Muslim related about Ibn 'Umar who ordered women to unbind 
their hair when they were doing the ritual bath. 'A'isha heard this and 
said, "I'm amazed at Ibn '13-mar — he commands women to unbind their 
hair, why didn't he order them to shave their heads too! I used to take a 
bath to-gether with the Prophet of God, may the peace and blessings of 
God be upon him, using the same vessel, and I did no more than pour 
water over my head three times. "27 Another example is what al-Zuhri 
mentioned about Hind, i.e., that she had not heard about the Prophet 
allowing women to pray during their menstruation, so she used to cry 
because she could not pray. 

2) Among (causes for disagreement among the Companions) are that 
they saw the Prophet carrying out an action, and some inter-preted it as 
a means of drawing nearer to God (qurba) and others as being (merely) 
ethically indifferent. An example of this is what the experts in legal 
theory relate about the ruling on tahrib (i.e., the stopping to sleep at a 
place called al-Abtah between Mina and Mecca when returning from 
Mina during the pilgrimage) —i.e., that the Prophet, may the peace and 
blessings of God be upon him, stopped there to rest. Abu Huraira and 
Ibn cUmar held that this was done by way of performing an act of 
worship and thus they took it to be one of the normative Hajj practices. 
On the other hand, 'A'isha and Ibn 'Abbas held that it was coincidental 
and not one of the practices of the pilgrimage.' 



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Another example is that the majority held that walking with a fast gait 
(ramal) during the circumambulations of the Ka'ba was a normative 
practice of the Prophet. Ibn 'Abbas held that the Prophet, may the peace 
and blessings of God be upon him, had only done this coincidentally 
due to a coincidental occurrence which was the polytheists' saying that 
the fever of Yathrib had overcome the Muslims so that this was not a 
normative practice (sunna).29 3) Among them are disagreements based 
on misconstrual (wahm) and an example is that when the Messenger of 
God, may the peace and blessings of God be upon him, made the 
pilgrimage people saw him, so that some of them held that he had 
entered the state of Ihriim for cli-mra and then later performed the Hajj 
(tamattu'), while others said that he had entered Ihram for 'Umra and 
Hajj together (qircin) and some that he had entered the state of Ihram for 
the Hajj only (if rad). 1 Another example that Abu Dawfid reported from 
Sa'id ibn IChabir is that he said, "I said to (Abd Allah ibn 'Abbas, '0 Ibn 
'Abbas, I am surprised at the disagreement of the Companions of the 
Mes-senger of God, may the peace and blessings of God be upon him, 
concerning when the Prophet began to observe the Ihreun. He re-plied, 
'In fact I am the most knowledgeable person about this. It occurred due 
to the fact that the Prophet only performed the Hajj once and out of this 
arose their disagreement. The Prophet, may the peace and blessings of 
God be upon him, set out (from Me-dina) on the pilgrimage and when 
he had prayed one rakca in the mosque of Dha Ilulaifa he entered the 
state of Ihram while he was sitting and made the exclamation 'Labbaika' 
when he had finished his two rak'as, so that some groups of people 
heard him do this and I have preserved the recollection of his doing this. 
Then he mounted, and when his camel stood up bearing him he cried 
out, 'I am at your service 0 Lord, 1 and (other) people also saw that he did 
this. This is due to the fact that people were coming to him group by 
group so that some heard him say 'Labbaika 1 when his camel stood up 
bearing him, so that they said, 'The Messenger of God, may the peace 
and blessings of God be upon him, began saving "Labbaika" when his 
camel rose up bearing him.' Then the Prophet, may the peace and 
blessings of God be upon him, set out on the journey, and when he had 
climbed the heights of Baida', he called out 'I am at your service, 0 Lord' 
and some of the people saw this so that they said, 'He began saying 
"Labbaika" when he had climbed the heights of al-Baida'.' By God's oath 
he entered the state of Mram at his place of prayer and said 'Labbaika' 
both when his camel rose up with him, and also when he readied the 
heights of al-Baida'. "31 4) Among the causes for disagreement are 
inattentiveness and forgetting. An example is that it is reported that Ibn 



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'Umar used to say that the Prophet, may the peace and blessings of God 
be upon him, had made 'Utnra during the month of Rajab, then (A'isha 
heard this and judged that fbn 'Umar had been inattentive. 1 5) Among 
them are disagreements of judgment. An example is what Ibn 'Umar or 
'Umar related from him, may the peace and blessings of God be upon 
him, about the dead person being tor-mented by the weeping of his 
family over him. Then 'A'isha ad-judged that he had not construed the 
hadith properly. The Messenger of God, may the peace and blessings of 
God be upon him, was passing by the funeral of a Jewish woman whose 
family were weeping over her so that he said, "They are weeping over 
her while she is being tormented in her grave. 1 " He (Ibn 'Umar) had 
supposed that the torment was causally related to the weeping, so that 
the ruling was generally applicable to the case of every dead person. 6) 
Among them are their disagreement over the rationale for legislation 
behind the ruling, for example, standing up as a funeral procession 
passes. One opinion is that it is out of respect to the angels so it should 
be generalized to funerals of both Believers and Unbelievers. Another 
says that it is due to the awe of death, so it should be done for a Believer 
or a Unbeliever. Al-Hasan ibn 'Ali, may God be pleased with both of 
them (he and his father), said, "The funeral bier of a Jew was passing by 
the Messenger of God, may the peace and blessings of God be upon him, 
and he stood up because he disliked that it should be raised above his 
head,"34 so that he considered that this applied only in the case of 
Unbelievers. 7) Among them are their disagreeing over resorting to two 
con-flicting rulings. For example, the Prophet, may the peace and bless- 
ings of God be upon him, gave permission for temporary marriage 
during the year of Khaibar and the year of Autas, then he forbade it. 
Then Ibn 'Abbas said, "The dispensation was based on an ex-tenuating 
circumstance and the prohibition came due to the cessa-tion of that 
circumstance, thus the prohibition remains in force.'" The majority of the 
scholars held that the dispensation (rukhsa) had made it allowable and 
that the prohibition has now abrogated this. Another example is the 
Prophet's, may the peace and bless-ings of God be upon him, forbidding 
facing the Qibla while per-forming istinja'36 so that one group held this 
ruling to be generally applicable and not abrogated. Mar saw him 
urinating while facing the Qibla a year before his death, so that he held 
that this abro-gated the previous prohibition. Ibn 'Umar saw him 
relieving him-self with his back to the Qibla and his face toward Syria,37 
so that he used this to refute their opinions. Another group combined 
the two reports, so that Al-Sha'bi and others held that the prohibition 
applied in the particular circumstance of being out of doors, but that if 
the person were in a toilet, then there would be no impor-tance given to 



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facing towards or having one's back turned to the Qibla. One group held 
that the Prophet's prohibition was definitive and universally in force, 
and that what he himself had done was possibly particular to his case 
only, so that it (the prohibition) could neither be considered abrogated 
nor limited to specific circumstances. 38 

In summary, the opinions of the Companions of the Prophet, (may the 
peace and blessings of God be upon him) varied and each one of the 
Successors learned whatever he was able from them, in like manner. 
Thus the Successor memorized whichever hadiths of the Prophet and 
opinions of the Companions he heard and thought them over, and he 
reconciled the variations in so far as he was able and preferred some 
opinions over others. Some of the sayings vanished from their 
consideration even though they had been re-ported from some of the 
most important Companions. For example the opinion reported from 
'Umar and Ibn Maschd concerning (the invalidity of) performing the 
ablution with sand on the part of a person who was ritually impure in 
the major sense (juniib)," faded away once the hadith reports from 
'Ammar and 'Urnran ibn al-Hasin and others became abundantly 
transmitted. 1 At this point each learned scholar among the Successors 
came to have his very own school, so that within every city there stood 
out a leading scholar like Sa'id ibn al-Musayyab (712) and Salim ibn 
'Abd Allah ibn 'Umar (725) in Medina, and after them al-Zuhri (742) and 
al-Qadi Yahya ibn Sacid (761) and Rabica ibn 'Abd al-Rahman (753), and 
'Ata' ibn Abi Rabah (732) in Mecca, and Ibrahim al-Nakha'i (715) and al- 
Sha'bi (c. 728) in Kufa, and Al-Hasan al-Basri (728) in Basra, and Tawas 
ibn Kaisan (c. 720) in Yemen, and Maktifil (730-736) in Syria. Thus God 
made people avid and desirous of their knowledge so that they learned 
from these scholars hadiths of the Prophet, legal opinions and sayings of 
the Companions; while they also learned from them their own legal 
opinions and verifica-tions. Those who needed legal opinions would 
consult them, legal issues were discussed among them, and cases were 
put before them to judge. Sacid ibn al-Musayvab and Ibrahim (al- 
Nakhaq) and their peers compiled together all of the categories of 
jurisprudence, and within each topic they possessed principles that they 
had learned from the pious ancestors. Said and his associates believed 
that the people of the two Holy Cities were the most reliable in 
jurisprudence so they based their school on the legal opinions of 'Abd 
Allah ibn 'Umar, (A'isha, and Ibn 'Abbas, and the verdicts of the judges 
of Medina. They compiled whatever they were able of these, then they 
examined them with respect to reliability and scrutinized them. 
Whatever they found to be agreed upon by the learned scholars of 



58 Haz. Shah Wali Allah in the mirror of his juristic views and services 

Medina they firmly held to, and whenever they found them in 
disagreement, they took the strongest opinion and the most 
preponderant, either due to the numbers of them who had held this, or 
due to it agreeing with a strong analogy or a clear inference from the 
Qur'an and sunna, or for some other similar reasons. When they didn't 
find among what they had preserved from those scholars any response 
on the issue they derived it on the basis of their sayings, and traced its 
allu-sions or logical entailments.' Thus they came up with many cases in 
which each topic has sub-divisions. Ibrahim and his associates thought 
that ' Abd Allah ibn Mas'fid and his associates were the most reliable 
persons in jurisprudence as shown by what 'Alqama (680/81) said to 
Masrfiq (682/83). "Is anyone of them more reliable than 'Abd Allah (Ibn 
Mas'ad)r42 And the saying of Abu Hanifa, may God be pleased with 
him, to Al-Auzaci, "Ibrahim is better at fiqh than Salim, and if not for the 
virtue of ('Abd Allah Ibn 'Umar's) having been a Companion, I would 
have said that 'Alqama had more legal acumen than 'Abd Allah ibn 
'Umar; and (Abd Allah (ibn Mas'ild) is in a class by himself.' The basis of 
his (al-NalchaTs) school consists of the fatwas of 'Abd Allah ibn Masfid, 
the judgments and fatwas of 'Ali, may God be pleased with both of 
them, and the judgments of Shuraih and other Kufan judges, so that he 
combined whatever he was able of this. Then he did for their reports 
what the Medinan scholars had done for the reports of the Medinans. He 
derived as they had derived, then outlined for this the issues of 
jurisprudence according to sub-divisions under each topic. Said ibn al- 
Musayyab was the spokesman for the jurists of Medina and had 
memorized 

Differences of opinions amongst the Fuqaha 

Prefatory Note 

As it is evident. The Qur'ans strongly condemns those who indulge in 
disagreements and adopt divergent views in matters of din, religion, 
causing a weakening of faith;* yet there has been considerable 
disagreement over the correct interpretations of the Oul'anic injunc-1- 
ions, not only among later scholars, but even among the founders the 
legal schools and the Successors.t Indeed, disagreement can traced back 
even to the times of the Cornpanionst of the Prophet. One can hardly 
point to a single Qur'anic verse of legal import which has received 
complete unanimity as regards its interpretation. One is bound to ask 
whether the Qur'anic condemnation applies to all who have disagreed in 
this way. If it does not, then what kind of schism and disagreement does 
the Qur'an denounce? The reader may rest assured that the Qur'an is not 



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opposed to differences of opinion within the framework of a general 
agreement on the fundamentals of Islam and the broad unity of the 
Islamic community. In addition it is not opposed to disagreement arising 
from an earnest endeavour to arrive at the right conclusions on a 
particular subject: the only disagreements condemned by the Qur'an are 
those arising out of egotism and perversity, leading to mutual strife and 
hostility. The two sorts of disagreement are different in character and 
give rise to different results. The first kind is a stimulus to improvement 
and the very soul of a healthy society. Differences of this kind are found 
in every =.ociety whose members are endowed with intelligence and 
reason. Their existence is a sign of life, while their absence only serves to 
demonstrate that a society is made up not of intelligent men and women 
but rather of blocks of wood. Disagreements of the second kind, 
however, are of an altogether different character and lead to ruin and 
destruction of the people among whom they arise. Far from being a sign 
of health, their emergence is symptomatic of agrave,, sicknesse The first 
kind of disagreement exists among scholars who are all agreed that it is 
their duty to obey God and His Prophet. They also agree that the Qur'an 
and the Sunnah are their main, sources of guidance. Thus, when 
scholarly investigation on some subsidiary question leads two or more 
scholars to disagree, or when two judges disagree in their judgement on 
some dispute, they regard neither their judgement, nor the questions on 
which their opinion has been expressed, as fundamentals of faith. They 
do not accuse those who disagree with their opinion of having left the 
fold of true faith. What each does is rather to proffer his arguments 
showing that he has done his best to investigate the matter thoroughly. It 
is then left to the courts (in judicial matters) and to public opinion (if the 
matter relates to the community at large) either to prefer whichever 
opinion seems the sounder, or to accept both opinions as equally 
permissible. Schism occurs when the very fundamentals are made a 
matter of dispute and controversy. It may also happen that some scholar, 
mystic, mufti, or leader pronounces on a question to which God and His 
Messenger have not attached fundamental importance, exaggerating the 
significance of the question to such an extent that it is transformed into a 
basic issue of faith. Such people usually go one step further, declaring all 
who disagree with their opinion to have forsaken the true faith and set 
themselves outside the commun-ity of true believers. They may even go 
so far as to organize those who agree with them into a sect, claiming that 
sect to be identical with the Islamic community, and declaring that 
everyone who does not belong to it is destined to hell-fire! Whenever the 
Qur'an denounces schismtic disagreements and sectarianism, its aim is 



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to denounce this latter kind of disagreement. As for disagreements of the 
first category, we encounter several examples of these even during the 
life of the Prophet. The Prophet not only accepted the validity of such 
disagreements, he even expressed apporoval of them. For this kind of 
disagreement shows that a community is not lacking in the capacity for 
thought, for enquiry and investigation, for grasping or wrestling with 
the problems it faces. It also shows that the intelligent members of the 
community are earnestly concerned about their religion and how to 
apply its injunctions to the problems of human life. It shows too that 
their intellectual capacities operate within the broad framework of their 
religion, rather than searching beyond its boundaries for solutions to 
their problems. And it proves that the community is following the 
golden path of moderation. Such moderation preserves its unity by 
broad agreement on fundamentals, and at the same time provides its 
scholars and thinkers with full freedom of enquiry se* that they may 
achieve fresh insights and new interpretations within the framework of 
the fundamental principles of Islam. 

more judgments of 'Umar and hadith of Abu Huraira than any of them, 
while Ibrahim (al-Nakha'i) was the spokesman for the Kufan jurists. 
Thus, if they said something without attributing it to some-one, this 
usually was attributed to one of the pious ancestors either explicitly, by 
allusion, or in some other way. The jurists of their two cities (Medina 
and Kufa) concurred on their accuracy, learned from them, reflected on 
what they learned, and drew further infer-ences on the basis of it, and 
God knows better. 



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CHAPTER-VIII 


The Causes for Disagreement among 
the Schools of the Jurists 


Know that God, may He be exalted, brought into being a genera- 
tion of scholars after the era of the Successors who conveyed knowl-edge 
in fulfillment of the promise of the Prophet, may the peace and blessings 
of God be upon him, when he said "A just person of every succeeding 
generation will convey this knowledge." 1 Thus these persons learned 
from those who had been with the Prophet the manner of performing 
the lesser and greater ablutions, prayer, pilgrimage, marriage, business 
transactions, and all other common-ly occurring things. They 
transmitted the hadith reports of the Prophet, may the peace and 
blessings of God be upon him, heard the judg-ments' of the Qadis of the 
various cities and the fatwas of their muftis and they inquired about 
legal issues, and carried out iftihad concerning all of these things. Then 
when they became leaders of the people and were consulted about all 
religious matters, they fol-lowed in the footsteps of their teachers and 
did not fail to study the allusions (ima'cit) and logical implications 
(ivida'at) (of re-vealed texts). Thus they judged, gave legal opinions, 
transmitted hadith, and taught, and the procedure of (all of the) ulema of 
this generation was similar. The essence of the procedure of these 
scholars was to hold to both the hadith which went back uninterruptedly 
to the Prophet (musnad) and those related about him but not directly on 
a Com-panion's authority (mursal). They deduced knowledge using the 
sayings of the Companions and Successors which might be hadiths 
transmitted from the Messenger of God, may the peace and bless-ings of 
God be upon him, which they considered to be less author-itative, so 
they termed them (these hadith) interrupted (mauqiif) before reaching 
the Prophet. An example is what Ibrahim (al-Nakhaci) said while he was 
transmitting a hadith about the Prophet, may the peace and blessings of 
God be upon him, forbidding crop futures contracts and the sale of fresh 
dates still on the tree for dried dates' It was asked of him, "Have you 
learned from the Prophet of God(s) any other hadith than this?" He 



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answered, "Yes, but I prefer to say "'Abd Allah said," or "(Alqame said." 
Likewise al-Sha'bi5 said, when he was asked about a hadith which was 
said to go back to the Prophet, may the peace and blessings of God be 
upon him, "I prefer to say that it goes back to a great person at a lesser 
rank than the Prophet, may the peace and blessings of God be upon him, 
so that if there should be any addition to or deletion from it, it comes 
from someone lesser than the Prophet.' In other cases they deduced from 
sayings of the Companions using inferences (istinbcit) on their part from 
revealed sources or by reasoned conclusions (ijtihad) based on their own 
opinions. In all of these things their procedure was better, and they were 
more accurate, closer in time, and knew more religious sources by heart, 
than those who came after them. For this reason implementing their 
rulings was prescribed unless they disagreed or a hadith of the Prophet 
of God, may the peace and blessings of God be upon him, manifestly 
conflicted with their opinion. It was also their method in cases when the 
hadith reports of the Prophet of God, may the peace and blessings of 
God be upon him, were at variance with one another about some issue, 
to refer to the opinions of the Companions. If the Companions held that 
some hadiths were abrogated or that their apparent meaning should be 
disregarded; or if they did not pronounce them abrogat-ed but 
concurred on leaving them aside and not holding them ob-ligatory — this 
would be tantamount to rejecting any legalistic force (cilia) in them, or to 
a ruling that they were abrogated or should be interpreted— and the 
jurists used to follow the Companions in all of these matters. An 
example is the doctrine of Malik concerning the hadith about a dog's 
saliva.' This hadith has been reported but I don't understand what it 
really means. In his Mukhtasar al-U.sfil Ibn tiajib8 related it, but I do not 
see the jurists acting upon it. When the opinions of the Companions and 
Successors differed about an issue, then the preference of every scholar 
was for the opinion of the people of his city and his teachers since he 
was more able to distinguish their sound opinions from their faulty 
ones, was more cognizant of the principles connected to these opinions, 
and would be predisposed toward their superiority and erudition. The 
way of 'Umar, 'Uthman, Ibn 'Umar, 'A'isha, Ibn 'Abbas, Zaid ibn Thabit, 
and their associates such as Sacid ibn al-Musayyab who among them 
knew best 'Umar's judgments and the hadith of Abu Huraira; and those 
such as 'Urwa, Salim, (Ata 1 ibn Yasar, Qasim, 'Ubayd Allah ibn 'Abd 
Allah, al-Zuhri, Yafiya. ibn Sacid, Zayd ibn Aslam, and Rabica was more 
worthy of being followed than others according to the people of Medina 
due to what the Prophet, may the peace and blessings of God be upon 
him, had explained about the virtues of Medina, and due to its being the 
abode of the jurists and the gathering place of the scholars in every age. 



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Therefore you find Malik following their methods of reason-ing and it is 
well-known that Malik upheld the consensus of the people of Medina 
and that al-Bukhari consecrated a chapter to "Taking Up What the 
People of the Two Holy Cities Agree Upon." The school of (Abd Allah 
ibn Macsiid and his associates, and the judgments of 'Ali, Shuraih, and 
al-Shag* and the fatwas of Ibrahim were more worthy of being followed 
than others according to the people of Kufa and this is represented by 
'Alqama's saying when Masrilq9 leaned toward the opinion of Zaid ibn 
Thabit concerning giving equal shares of inheritance. 'Alqama said, "Is 
anyone of you more reliable than 'Abd Allah (ibn Mascild)?" Then he 
replied, "No, but I saw Zaid ibn Thabit and the people of Medina doing 
tashrikl 0 and if the people of the region concur about something they 
firmly hold to it."" About this same type of issue Malik said, "The 
established practice about which there is no disagreement among us is 
such and such, and if people differ, then act upon the stron-ger and 
preferable opinion — either due to the large number of those who hold it, 
or due to it agreeing with a strong analogy, or due to it being derived 
from the Qur'an and the practice of the Prophet. This is the type of 
instance in which Malik said, "This is the most correct (opinion) among 
those which I have heard." If the scholars did not find among the sources 
that they had memorized a response to an issue they derived it on the 
basis of their (the Companions') sayings and sought out allusions and 
log-ical implications (within these sayings). In this generation they were 
inspired to record hadiths so that Malik and Muhammad ibn 'Abd al- 
Rahman Ibn Abi Dhi'b (775) recorded them in Medina, and Ibn Jurayj 
(767) and Ibn 'Uyayna (814) in Mecca, and al-Thauri (778) in Kufa, and 
Rabi' ibn al-Sabih (777) in Basra. All of them fol-lowed the procedure 
which we mentioned, and when (the Caliph) Mansur performed the 
pilgrimage he said to Malik, "I have de-cided to order that the books 
which you have compiled (the Muwatta') should be copied and then I 
will send copies to every garrison town of the Muslims and command 
them to follow what is in them, and not to go beyond them to any other 
source." Malik replied, "0 Commander of the Faithful, don't do this, for 
sayings (of the Com-panions and Successors) are already known to 
people, and they have heard hadith and have transmitted reports. Each 
group fol-lows what they already know and differences have arisen, so 
leave people with what each locality has chosen for itself. A story has 
also been told about Harlin al-Rashid, that he consulted Malik re- 
garding having the Muwatta' hung up in the Ka'ba, and urging the 
people to act according to it. Malik replied, "Don't do that, for the 
Companions of the Messenger of God, may the peace and bless-ings of 



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God be upon him, differed about the branches of the law (fitrie)12 and 
they dispersed to various localities and each practice (of the Prophet) is 
already carried out. Thereupon Harlin said, "May God grant you 
success, 0 Ab5 'Abd Allah!" Al-Suytitti related this. 

Malik was the most reliable of them concerning the hadiths which the 
Medinans reported from the Messenger of God, may the peace and 
blessings of God be upon him, and the most trustworthy of them 
concerning the chain of transmitters and the most knowledgeable of 
them concerning the judgments of 'Umar and the opinions of 'Abd 
Allah ibn 'Umar and 'A'isha and their associates among the seven 
jurists. 13 Through him and other scholars like him the sci-ence of hadith 
transmission and juristic opinions was established. Once he became the 
established authority he taught hadith, gave legal opinions, benefited the 
people and distinguished himself. This saying of the Prophet, may the 
peace and blessings of God be upon him, "Soon people will travel great 
distances seeking knowledge, but they will find none more 
knowledgeable than the scholar of Medina,"" truly applies to him (Imam 
Malik). This hadith was nar-rated by Ibn 'Uyayna and 'Abd al-Razzaq — 
and the word of these two should be sufficient. Malik's associates 
collected reports and preferred opinions and summarized them, edited 
them, explained them, derived rulings on issues from them and 
discussed their prin-ciples and proofs. They (eventually) dispersed to the 
Western lands and all reaches of the world so that through them God 
brought great benefit to His people. If you would like to verify what we 
have said concerning the basis of Malik's school then consult the book al- 
Muwatta' and you will find it to be as we have reported. Abu Hanifa, 
may God be pleased with him, was the closest of them to the way of 
Ibrahim (al-Naldial) and his contemporaries and very rarely departed 
from his teachings. He was extremely tal-ented in making legal 
derivations based on Ibrahim's school and was a precise inquirer into the 
meanings of the derivations, and he gave the fullest attention to positive 
law (al-fura'). If you wish to verify the truth of what we have said then 
go over the statements of Ibrahim and his contemporaries in the book al- 
Athar of Muhammad (Abu Yasuf, 798), may God have mercy on him, 
and the faint 1 of 'Abd al-Razzaq (827), 15 and the Musannaf of Abu Bakr 
ibn Abi Shayba;16 then compare these with his school and you will find 
that he doesn't diverge from this procedure except on insignificant 
occasions and that even on these minor occasions he did not go beyond 
what the jurists of Kufa held. The most well-known of his students was 
Abu Yasuf (731/2-798), may God be pleased with him, and he held the 
post of chief-judge during the reign of Haran al-Rashid and thus he was 
instrumental in the emergence of Abu Hanifa's school and in judg-ments 



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being based on it in the regions of Iraq, Khurasan, and Transoxiana. The 
best compiler and most assiduous student among them was Muhammad 
ibn al-Hasan (al-Shaibani, 805), and it is reported that he studied law 
with Abu Hanifa and Abu Yasuf and then went on to Medina where he 
studied the Muwatta' with Malik. After that he went over it on his own 
and correlated the school of his associates with the Muwatta', issue by 
issue, whenever they could be harmonized. If they could not be so 
harmonized and he saw that a group of the Companions and the 
Successors held the same opinions as his associates, then he held this to 
be his doctrine; but if he found the jurists using a weak analogy or a 
feeble derivation which disagreed with a sound hadith or which was 
opposed by the practice of most of the scholars, he abandoned it in favor 
of one of the opinions of the pious ancestors which he found preferable. 
These two (Abu Ytisuf and Muhammad ibn Hasan al-Shaibani) followed 
the way of Ibrahim al-Nakhaq and his contemporaries in so far as they 
were able, just as Abu Hanifa, may God be pleased with him, had done. 
These (three Hanafi jurists) only were are variance in either one of two 
cases. Either the two students disagreed with a derivation which Abu 
Hanifa had made based on Ibrahim's opinion, or the opinions held by 
Ibrahim and his peers were at variance and the two students disagreed 
with Abu Hanifa concerning which opinion they found to be preferable 
over the others. Muhammad (ibn Hasan), may God have mercy on him, 
compiled and gathered the opinions of these three (Ibrahim, Abu Hanifa 
and Abu Yiisuf) and this ben-efited many people. The followers of Abu 
Hanifa, may God be pleased with him, devoted themselves to these 
compilations by abridging them, ex-plicating them, commenting on 
them, making derivations, estab-lishing fundamental principles, and 
making deductions. Later they dispersed to Khurasan and Transoxiana 
and this became known as the school of Abu Hanifa. 

Al-Shafi'i came on the scene during the early emergence of these two 
(Maliki and Hanafi) schools and at a time when their legal theory and 
positive law had begun to be elaborated. He examined the procedure of 
the earliest figures and found in it certain matters which kept him from 
following their method and this he discusses at the beginning of his 
Kitab 

1) Among these matters is that he found that they accepted hadiths not 
connected to the Prophet through a Companion (mursal) and hadiths 
which were otherwise interrupted (munqatT), and that these two types 
of hadith in many cases were defective. When he col-lated the chains of 
transmission of the hadiths it became evident that many of the hadiths 



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not transmitted directly by a Companion from the Prophet were 
baseless, and many conflicted with those hadiths which were 
uninterruptedly transmitted (musnad). He de-cided not to accept a 
mursal hadith unless certain conditions were fulfilled, and these are 
mentioned in the books of juristic theory.' 

2) A second among the factors which dissuaded him from fol-lowing 
their way was that the rules for collating the variants had not been 
rendered precise by the earlier figures, so that due to this defects had 
entered into their tjtihdds. Therefore al-Shafici estab-lished principles for 
doing this and recorded them in a book' and this was the first recording 
made of the theoretical bases of juris-prudence (u.si.il al-fiqh). An 
exemplification of this is what we have heard concerning al-Shafici, i.e. , 
that he went over to Muhammad Ibn Hasan's while the latter was 
challenging the scholars of Me-dina about their giving a judgment 
concerning one witness (being sufficient) for giving an oath. Ibn al- 
Hasan held that this judgment was augmenting the Qur'an.20 Al-Shafil 
said, "Is it affirmed by you that it is not permitted to augment what the 
Qur'an says on the basis of the report of a single individual?" He replied, 
"Yes." al-Shafici said, "Then why do you hold that the will in favor of an 
heir is not permitted based on the Prophet's, may the peace and 
blessings of God be upon him, saying, "Know that there is no will in 
favor of an heir,"2' while God, may He be Exalted, said in the Qur'anic 
verse, "It is prescribed when death is drawing near to one of you,"22 
(that if some property is to be left a will should be made in favor of 
parents and relatives). 23 He raised a number of objections of this sort to 
him so that Muhammad ibn al-Hasan was silenced. 3) A third reason is 
that some of the sound hadiths were not known to the ulema among the 
Successors who were charged with delivering legal opinions, so that 
they performed independent rea-soning based on their personal 
opinions, made generalizations, or followed one of the deceased 
Companions, delivering legal opin-ions according to his authority. Then 
when these hadith reports later became known in the third generation, 
they were not imple-mented out of the supposition on their part that 
these conflicted with the practice and custom of the people of their city 
about which they all agreed, and that this constituted a reason for 
rejecting these hadith and a case for not taking them into consideration. 
Or (in some cases) these hadith did not come to light in the third, gener- 
ation, but only after that at the period when the hadith scholars deeply 
investigated the chains of transmission and traveled to all corners of the 
earth seeking them out from the bearers of tradition-al knowledge, so 
that the body of those hadith which had only been transmitted by one or 
two persons among the Companions, and passed on from them by only 



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one or two persons, proliferated, and in this way the matter continued. 
Thus these had not been known to the jurists (ahl al-fiqh) and only came 
to light in the time of the memorizers who collated the chains of many of 
the hadith, for example, those transmitted by the people of Basra, al- 
though those in other regions were ignorant of them. Al-Shafici 
explained that the knowledgeable people among the Companions and 
Successors never ceased seeking out the hadith reports relative to an 
issue, and if they didn't find any then they would seize on to some other 
means of deduction (istidlal). Then if they became aware of a hadith 
after that they would revoke their answer based on ijtihad in favor of the 
hadith. Therefore if this were the case, their (the Companions') failure to 
have (previously) adhered to the hadith did not constitute a reason for 
rejecting it, never indeed — unless they explained the reason behind this 
rejection. An illustration of this is the hadith about the two large jars24 
for this is a sound hadith transmitted by many chains, the majority of 
them going back to Abu al-Walid Ibn Kathir from Muhammad ibn Ja'far 
ibn al-Zubair from ' Abd Allah — or from Muhammad ibn Tbad ibn Ja'far 
from 'Ubayd Allah ibn 'Abd Allah — both of these from Ibn 'Umar. Then 
after that the chains of transmission branched out further. These two 
hadith transmitters (Muhammad ibn Ja'far and Muhammad ibn 1 1 bad), 
although they were considered to be reli-able, were not among those 
who were authorized to give legal opinions, nor did people depend on 
them. For this reason this hadith did not come to light in the period of 
Said ibn Musayyab, nor in the time of al-Zuhri, and neither the Malikis 
nor the Hanafis proceeded according to it, so they did not implement it, 
while al-Shafici did. Similarly the hadith about con-tract options 
remaining open as long as the parties are in each oth-ers' company 
(khiyar al-majlis), for it is a sound hadith,25 transmitted by many chains 
of reporters. Among the Companions Ibn implemented it and so did 
Abfl Huraira but it was not known among the seven jurists and their 
contemporaries so they did not hold it. Therefore Malik and Abfl Hanifa 
held this to be a reason for re-jecting the hadith while al-Shafil 
implemented it. 

4) The fourth of them is that the opinions of the Companions were 
collected at the time of al-Shafi 'I, so that these came to pro-liferate, 
disagree with one another, and branch out, and he saw that many of 
them opposed sound hadiths since the Companions had not been aware 
of those hadiths. He saw that the pious ancestors had never ceased 
giving preference to the hadith in such cases so he abandoned rigid 
adherence to their opinions when these sayings did not agree saying, 
"They are (only) human beings and so are we." 



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5) The fifth reason is that he saw that a group of the jurists mixed 
personal opinion, which the divine law did not sanction, with analogical 
reasoning, which it affirmed; so that they did not distinguish the one 
from the other and they sometimes termed this istihsan 26 What I mean 
by personal opinion (ra'y) is that they as-cribe the anticipated source of 
some hardship or benefit (maslaha) as being the reason for legislation 
(cilia) behind the ruling, while qiyas would be syllogistically extracting 
the reason for legislation from the ruling of the revealed sources and 
basing the ruling on this reason. Al-Shafi'i completely nullified this type 
of personal opinion (ra'y), saying, "whoever does istihsan wants to 
become the lawgiver." Ibn al-I ajib related this in Mukhtasar al-Usiil.27 
An example of this is the ruling concerning reaching puberty or the 
maturity of an or-phan which is a covert matter. Therefore they 
established the ex-pected time of maturity as reaching twenty-five years 
in its place saying, "When an orphan attains this age his property should 
be remitted to him." They opined that this was istihsan,, while the 
derivation based on analogy is that it should not be remitted to him . 28 
In sum, since Al-Shafici found things like this occurring among the 
procedure of the preceding figures he started jurisprudence over from 
the beginning and set out its theoretical foundations, drew out their 
practical ramifications, and compiled books distinguish-ing himself and 
benefiting humanity. The jurists concurred with him and devoted 
themselves to summarizing, commenting on, making deductions, and 
deriving rulings from his books. Then they dis-persed to the various 
cities so that this became the Shatil school, and God knows better. 



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CHAPTER-1X 


The Difference Between the People of 
the Hadith and Those Who Exercise 
Personal Opinion 


You ought to know that there were among the ulema at the time 
of Sa'id ibn al-Musayyab, Ibrahim, and al-Zuhri and in the time of Malik 
and Sufyan, and after that, a group who despised engaging in the use of 
personal opinion, and feared giving fatwas and making deductions 
except in cases of unavoidable need, and their greatest concern was for 
transmitting the reports of the Prophet of God, may the peace and 
blessings of God be upon him. 

' Abd Allah ibn Mas'ud was asked about a matter and he said, "I 
would hate to permit for you something which God had forbidden to 
you, or that I should forbid a thing which God had permitted you." 
Mu'adh ibn Jabal said, "O People, don't hasten to calamity before it has 
struck, for there will always remain those among the Muslims who, if 
asked, will respond with a prophetic tradition." Similar statements were 
reported from 'Umar, 'Ali, Ibn 'Abbas, and Ibn Mas'ud concerning the 
dislike of speculative discussion of matters which had not occurred. Ibn 
'Umar said to Jabir ibn Zaid "You are one of the jurists of Basra so don't 
give legal opinions unless they are based on a conclusive Qur'anic 
injunction or an established prophetic practice, for if you do otherwise 
you will perish and cause the ruin of others." Abu al-Nasr said, "When 
Abu Salama arrived at Basra, Hasan (al-Basri) and I came to see him and 
he said to Hasan, 'Are you Hasan? There is no one in Basra whom I 
would rather meet than you, and this is because I heard that you give 
fatwas on the basis of your personal opinion, so (in the future) don't give 
a legal opinion based on your personal opinion unless there is a sunna 
from the Prophet, may the peace and blessings of God be upon him, or a 
revealed Qur'anic verse." Ibn al-Munkadir said, "The scholar is a 
mediator between God and His servants — so he had better find a way 
out for himself." Al-Sha'bi was asked, "What did you do when you were 



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asked (about legal matters)?" He replied, "You have asked the expert. If 
when any person were asked about an issue, he would say to his 
associate, "give a fatwa on the question," then in the very same way this 
would go on from one to another until it wound up back up at the first 
person." Al-Sha'bi said, "Accept whatever these persons reported to you 
from the Messenger of God, may the peace and blessings of God be 
upon him, and what they said on the basis of their own opinion, throw 
in the toilet." Al-Darimi related all these reports. Then the recording of 
the Prophet's hadith and reports from the Companions and the writing 
of the Qur'an manuscripts spread in the Islamic regions until at last there 
remained very few hadith transmitters who did not have (made of their 
hadith collections) a recorded copy, a collation or a manuscript due to 
their need of this on some important occasion. Thus the great scholars of 
that time who had attained knowledge circulated among the regions of 
the Hijaz, Syria, Iraq, Egypt, Yemen, and Khurasan and collected the 
books, studied the manuscripts, and carefully scrutinized the less known 
and rare hadiths. Through the great endeavors of these people there 
were collected hadiths and sayings which no one had ever gathered 
before, and they could do what had never before been possible, and 
many chains of hadith transmission became known to them, so much so 
that some hadiths were known to them through over one hundred or 
more lines of transmission. Some of the chains brought to light what had 
been obscure about certain others and they recognized the status of each 
hadith in being transmitted by a single person or by a wide variety of 
transmitters. They were enabled to investigate the concurring 
(mutabi'eit) and supporting (shawethid) hadiths and many sound 
hadiths came to light for them which had not been known to the people 
previously giving legal opinions. Al-Shafil said to Ahmad (ibn Hanbal), 
"You are more knowledgeable about the hadiths than I, so if there exists 
a sound report, please inform me so that I can follow it, whether it is 
Kufan, Basran, or Syrian." Ibn al-Humam related this. 

This is because a few sound hadiths were only related by the 
people of a particular locale such as the Syrians or Iraqis or the people of 
a particular family such as the manuscript of B arid transmitted from 
Abu Burda from Abu Musa," and the manuscript of 'Amr ibn Shu'aib 
(736) transmitted from his father and from his grandfather. In other cases 
a certain Companion might have been of minor influence and obscure so 
that only a small group of hadiths were passed on from him. Thus most 
of the people giving legal opinions were unaware of these types of 
hadiths. This generation of scholars had available to them the reports of 
the jurists of each city who were Companions and Successors, for before 
their time a person had only been able to collect the hadiths of his city or 



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as-sociates. Those before them had relied for knowing the names of the 
transmitters and the degree of their reliability on what was available to 
them based on situational and circumstantial evidence. This generation 
went deeply into this discipline (of biography) and made it a distinct 
field for recording and investigation. They debated the rulings of hadith 
soundness, etc., so that through this putting in writing and debate there 
were disclosed to them things which had previously been unknown in 
terms of the hadith going back uninterruptedly to the Prophet or being 
interrupted. Sufyan, Raki' and ones like them had made the greatest 
efforts but had only been able to find less than one thousand 
uninterrupted hadith going back to the Prophet, as Abu Dawad al- 
Sijistani mentioned in his letter to the people of Mecca, while the people 
of this genera-tion transmitted about forty thousand hadiths. 

It is true that al-Bukhari condensed his sahih to six thousand 
hadiths and that Abu Dawad limited his Sunan to five thousand, and 
that Ahmad made his Musnad a standard by which to recognize the 
hadith of the Messenger of God, may the peace and blessings of God be 
upon him. Thus, whichever hadith is found in the Musnad, even if 
reported by one chain could be valid, and if not, it would have no 
validity. The chief hadith scholars of this generation were Abd al- 
Rahman ibn Mahdi (813), Yahya ibn Sa'id al-Qattan (813), Yazid ibn 
Harun (736), 'Abd al-Razzaq (827), Abu Bakr ibn Abi Shaiba (849), 
Musaddad (ibn Musarhad (843), Hannad (ibn al-Sarid, 857), Ahmad ibn 
Hanbal (855), Ishaq ibn Rahawayh (852/3), al-Fadl ibn Dakain (748), 'Ali 
al-Madini (849) and their peers, and this generation was an excellent 
model for the subsequent generations of hadith scholars. 

The researchers among them, after mastering the discipline of 
hadith transmission and recognizing the ranking of hadith, next turned 
to jurisprudence. They didn't hold the opinion that people should agree 
to perform taqlid of a person who had gone before due to the fact that 
they observed that each of these schools contained contradictory hadith 
and reports. Thus they took up evaluating the Prophet's hadith and the 
reports of the Companions, Successors and Mujtahids according to rules 
which they themselves established— and I will explain to you in a few 
words what these principles are. 

1) They held that if there were found a conclusive Qur'anic verse 
pertaining to an issue, it was not permitted to turn from this to 
something else. 



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2) If the Qur'an could support various interpretations then the sunna 
would be used to rule on the issue. 

3) If they didn't find (the answer to an issue) in the Divine Book they 
used a sunna of the Messenger of God, may the peace and blessings of 
God be upon him, whether it was abundantly reported, current among 
the jurists, known only to the people of a certain region or family, or 
reported through a particular chain of transmission, and whether the 
Companions and jurists implemented it or they did not. 

4) When there existed a hadith about the issue they wouldn't follow any 
report from the Companions or any ijtihad of a scholar which opposed 
it. 

5) Once they had concluded their efforts in tracing the hadiths and had 
not found any hadith relevant to the matter, they would accept the 
opinions of a group of the Companions and Successors and not restrict 
themselves to one group to the exclusion of another or one region to the 
exclusion of another, as those before them had done. 

6) If the majority of the Caliphs and Jurists had agreed on something, 
they accepted this, and 

7) If they disagreed they would accept the saying of the one who was the 
most knowledgeable and pious, or the most accurate or the one who was 
most well-known among them. 

8) If they found a matter in which two opinions held equal force this 
was, considered an issue in which both could be held to be valid. 

9) If they were unable to do even this then they would look attentively 
into what is generalizable from the Qur'an and the sunna, their referents 
by way of allusion, and what they logically entail, and they would bring 
parallel cases to bear on the issue in order to respond when these two 
cases were obviously close to each other. 

In this they did not rely on principles of legal theory but on what 
could be arrived at through pure human understanding and what would 
assure the heart, just as the standard of concurrent traditions (tawatur) is 
not the number of transmitters, nor their status, but rather the certainty 
in the hearts of people which follows hearing the report, as we have 
previously recounted concerning the status of the Companions of the 
Prophet. 

These principles were derived on the basis of the practice of the 
first generations and their pronouncements. It is reported from Maimum 
ibn Mihran (734) that he said, "Whenever a dispute was laid before Abu 
Bakr he used to consult the Book of God, and if he found something in it 



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by which to adjudicate among them he judged by it, and if it wasn't in 
the Qur'an and he knew of a sunna from the Messenger of God, may the 
peace and blessings of God be upon him, pertaining to the matter, he 
judged by it, and if he failed in this he would go out and ask the 
Muslims, saying, "Such and such a case has been referred to me, so do 
you know if the Messenger of God, may the peace and blessings of God 
be upon him, had made any judgment on this?" Thus sometimes all of 
the people would gather around him mentioning a judgment from the 
Messenger of God, may the peace and blessings of God be upon him 
about this, and then Abu Bakr would say, "Praise be to God, who put 
among us those who have preserved reports of our Prophet." If he failed 
to find a sunna of the Prophet, may the peace and blessings of God be 
upon him, about it he would gather the pious and reliable people and 
the best among them and he would consult them. Then if their opinion 
concurred on a matter he would judge according to this. 

It is reported from Shuraih that 'Umar ibn al-Khattab wrote to 
him, "If you find something in God's book judge according to it and 
don't let others divert you from this, and if something arises which is not 
in God's book, then look at the practice (sunna) of the Prophet, may the 
peace and blessings of God be upon him, on it and judge on the basis of 
this. If there arises something which is not in God's book and neither is 
there a sunna of the Prophet, may the peace and blessings of God be 
upon him, about it, then consider what people have concurred on, and 
act on this. If there arises something which is not in God's book, nor 
covered by any sunna of the Prophet, may the peace and blessings of 
God be upon him, nor has any one before you discussed it — then choose 
either of two courses of action. If you wish to do independent reasoning 
(ijtihad) based on your own opinion, and proceed thusly, then pro-ceed. 
If you wish to leave it aside, then leave it aside and I consider leaving it 
aside as nothing but good for you." 

From 'Abd Allah ibn Mas'ud it is reported that he said, "A time 
has come for us in which we do not judge nor are we capable of judging. 
God has decreed that we should arrive at this (situation) which you see. 
Thus, whoever is presented with a case to judge after this time, should 
rule on it based on what is in the book of God, may He be Great and 
Exalted, and if something comes up which is not in the book of God then 
he should rule on it based on what the Prophet, may the peace and 
blessings of God be upon him, ruled. If something comes up which is 
neither in God's Book, nor did the Prophet, may the peace and blessings 
of God be upon him, rule on it, then he should judge according to what 



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the righteous ones did (i.e., by ijma), and he should not say, 'I am afraid', 
or 'I hold the opinion', for, 'the forbidden is clear and the permitted is 
clear, and between them are ambiguous matters — so leave aside what 
you are dubious about in favor of that in which you have no doubt." 

Ibn 'Abbas, when asked about a matter, informed about it if it 
was in the Qur'an, and if it was not in the Qur'an but was ruled on by 
the Prophet, may the peace and blessings of God be upon him, he related 
it, and if not, then he related what Abu Bakr and 'Umar had ruled, and if 
not, then he gave his own opinion about it. 

It is reported from Ibn 'Abbas, "Don't you fear that you will be 
punished or be made to sink into the ground for saying, 'The Prophet, 
may the peace and blessings of God be upon him, of God said such and 
such, and some person said ...'" Qutada said, "Ibn Sirin recounted to a 
man a hadith from the Prophet, may the peace and blessings of God be 
upon him, then that man said, 'so and so said such and such a 
thing."'Then Ibn Sirin said, 'I tell you a hadith from the Prophet, may the 
peace and blessings of God be upon him, and you said, 'so and so said 
such and such a thing! ", A1 Auza'i"said, "'Umar ibn 'Abd al-Aziz gave 
an order that no one could give personal opinions about what was in the 
Qur'an and the leaders of the legal schools could only give opinions 
concerning things which the Qur'an had not revealed, nor had a sunna 
of the Prophet been transmitted about them, nor could anyone hold their 
own personal opinion about a matter for which there existed a sunna of 
the Prophet. Al-A'mash said "Ibrahim (al-Nakha'i) used to say that the 
muqtadi should stand on the left (of the prayer leader), then I related to 
him a hadith from Sami' al-Ziyat from Ibn 'Abbas, that the Prophet, may 
the peace and blessings of God be upon him, set him (Ibn 'Abbas) on his 
right side, so Ibrahim adopted this." 

Al-Sha'bi reported that a man had come to him asking about an 
issue so that he replied that Ibn Mas'ud had said such and such a thing 
about it. The man then said, "Tell me your opinion about it." Al-Sha'bi 
said, "Aren't you amazed at this person, I told him what Ibn Mas'ud said 
and he asked about my opinion. My religion is more important to me 
than that! By God, I would rather burst into song than inform you on the 
basis of my opinion." Al-Darimi gathered all of these reports. 

Al-Tirmidhi reported from Abu al-Sa'ib who said, "We were at 
Waki's and he said to one of those persons who had the habit of giving 
his own opinion, 'the Prophet of God, may the peace and blessings of 
God be upon him, used to practice ishar. Did Abu Hanifa hold that it 
(ish'ar) is mathla? 1 The man said, 'It had been reported that Ibrahim al- 
Nakha'i said, "Ish'ar is the same as mathla. 1 " Then (Abu Sa'ib) related, "I 



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saw Waki' get very angry and he said 'l tell you that, "the Prophet of 
God, may the peace and blessings of God be upon him, said" and you 
say "Ibrahim said". It's better that you should be imprisoned and not set 
free until you repudiate what you have just said." 

It is reported that (Abd Allah ibn 'Abbas, ' Ata, Mujahid and 
Malik ibn Anas, may God be pleased with them, used to hold that except 
for the Prophet of God, may the peace and blessings of God be upon 
him, there was no one whose speech could not either be accepted or 
refuted. 

In summary, once (the scholars) had laid out jurisprudence 
according to these principles there remained no issue among those that 
had been previously discussed nor among those that had come up in 
their era but that they had found a hadith pertaining to it, whether going 
back uninterruptedly to the Prophet (marfu'), having all transmitters 
mentioned (muttasal), being interrupted at the level of a Companion 
(mursal), or the statement of a Companion (manqul), whether sound, 
good, or being worthy of being considered, or that they had found a 
statement of Abu Bakr or Umar, or the other caliphs or the judges of the 
early Islamic garrison cities and the legists of the (early) regions or an 
inference (istinbat) through a generalization, allusion, or entailment. In 
this way, Allah facilitated implementing the sunna for them. The highest 
of the scholars in dignity, the one who transmitted hadith most 
extensively, the most knowledgeable of the ranking of hadiths, and the 
most astute in jurisprudence was Ahmad ibn Hanbal, then Ishaq ibn 
Rahwayh. 

The organization of jurisprudence along these lines thus 
depended on collecting a great number of hadiths and accounts to the 
point that Ahmad (Ibn Hanbal) was asked if (knowing) 100,000 hadith 
would suffice a person to be able to give a legal opinion. He replied, 
"No," until the number 500,000 hadith was suggested. Then he said, "I 
hope so." This is quoted thus in Ghaya al-Muntaha. He meant that this 
basis (would suffice for) giving fatwas. 

Then God brought forth a later generation who observed that 
their predecessors had spared them the trouble of gathering hadiths and 
laying out jurisprudence on their foundation, so they were free to turn 
their attention to other disciplines such as singling out those sound 
hadiths concurred on by the great masters of the hadith scholars such as 
Zaid ibn Harun, Yahya ibn Sa'id al-Qattan, Ahmad, Ishaq and ones like 
them; collecting the legislative hadith upon which the jurists of the 



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garrison towns and the ulema of the early regions had built their legal 
schools; as well as ruling on each hadith according to its merits such as 
the anomalous (shadhdha) and singly transmitted (fadhdha) hadiths 
which the earlier reporters had not transmitted, or following up their 
lines of transmission that earlier scholars had not traced in which there 
might be found an uninterrupted connection to the Prophet or an 
elevated chain, or the transmission from one juristic expert to another 
jurist, or from one memorizer to another and so on with this type of 
technical topic. These ones are al-Bukhari, Muslim, Abu Dawad, ' Abd 
ibn Humayd (863), al-Darimi, Ibn Majah, Abu Ya'la (1066), al-Tirmidhi, 
al-Nasal, al-Daraqutni, al-Baihaqqi, al-Khatib, al-Dailami, and Ibn 'Abd 
al-Barr (1070) and their like. In my opinion, the ones among them who 
are the most famous, the most knowledgeable, and whose writings are 
the most useful, are four, approximately contemporary to one another. 

The first of them is Abu 'Abd Allah al-Bukhari (870) whose goal 
was sorting out the sound, abundantly transmitted hadith which went 
directly back to the Prophet from the others, and inferring from them 
jurisprudence, prophetic biography and Qur'an interpretation. Thus he 
compiled his collection, al-Sahih, remaining faithful to his conditions. 
We heard that a pious man saw the Prophet of God, may the peace and 
blessings of God be upon him, in a dream and he said, "What's wrong 
with you that you have become preoccupied with the jurisprudence of 
Muhammad ibn Idris (al-. Shafi'i) and gotten away from my book." He 
asked "O Prophet of God, what then is your book?" He replied, "Sahib al- 
Bukhari." By my life it has achieved fame and acceptance to a degree 
beyond which none could possibly aspire. 

The second of them is Muslim al-Nisapuri (875), who aimed to 
isolate those sound hadith which hadith scholars had agreed upon, 
which were uninterruptedly transmitted from the Prophet, and from 
which the Prophetic sunna could be inferred. He wished to popularize 
them and facilitate the inference of jurisprudence from them. Thus he 
did an excellent job of organizing them, assembling the chains of 
transmission of each hadith in one place so as to clarify as fully as 
possible textual variants and the branches of the lines of transmission, 
and he correlated the variants so that there remains no excuse for the 
person who is cognizant of the Arabic language in turning away from 
the sunna to something else. 

The third of them is Abu Dawad al-Sijistani (889) whose concern 
was with collecting the hadiths in which jurists found the indicants 
(istadalla) for rulings and which were current among them and on which 
were founded the rulings of the ulema of the early cities. To this end he 



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compiled his Sunan collecting in it the sound, good, without defect (lin), 
and proper to be implemented (salih 1-il 'amal) hadith. Abu Dawad said, 
"I did not cite in my book any hadith which people had agreed to leave 
aside." He exposed the weakness of any weak hadith among them, and 
whichever of them contained a deficiency, he explained this in a way 
that the expert in hadith studies would understand, and he explained in 
the case of each hadith whatever (ruling) a scholar had deduced from it, 
or whichever opinion a knowledgeable person had based on it, and 
therefore al-Ghazzali and others have stated that his book would suffice 
for the legal scholar doing independent reasoning (mujtahid). 

The fourth of them is Abu 'Isa al-Tirmidhi (892), and it's as if he 
perfected the method of the two shaikhs (Bukhari and Muslim) insofar 
as they clarified and did not obscure, and the method of Abu Dawad 
insofar as he collected everything on which an opinion had been given. 
Thus he combined each of the two methods and added to them the 
explanation of the methods of the Companions, Successors, and jurists of 
the early garrison towns. He compiled a comprehensive book and 
elegantly abridged the hadith chains. Thus he would cite one chain 
while pointing out what he had omitted and he explained the status of 
each hadith in its being sound, good, weak or undetermined, giving the 
reason for defectiveness so that the student of hadith would be informed 
concerning its status and recognize those hadith which could properly 
be taken into consideration from those which could not. He also 
indicated whether a hadith was transmitted by a wide variety if persons 
or by a single narrator, and he mentioned the schools of the Companions 
and Jurists of the early Islamic cities, giving the first names when 
necessary and supplying the kunyas if necessary. He left nothing hidden 
from the knowledgeable person and therefore it is said that his book 
suffices the mujtahid and is more than enough for the muqallid. 

In contrast to these persons there was in Malik's and Sufyan's 
time and after them a group of people who were not reluctant to delve 
into the issues, nor did they fear giving legal opinions and they held that 
jurisprudence was the foundation of religion so that it must become 
widespread. They rather feared the transmission of Prophetic hadith 
which were being made to reach back to him, such that al-Sha'bi said, 
"We prefer (a hadith) going back to someone other than the Prophet, 
may the peace and blessings of God be upon him, for if there is any 
addition or deletion from it involves someone other than the Prophet, 
may the peace and blessings of God be upon him." Ibrahim (al-Nakha'i) 
said, "I say, that "Abd Allah said,' and "Alqama said,' is preferable 



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according to us." When Ibn Mas'ud related hadith which he had heard 
from the Prophet his face streamed with tears and he said, "(He said) 
exactly this or something along these lines, and so on." 'Umar said when 
he sent a group of the Ansar to Kufa, "You are going to Kufa to a people 
who weep when they recite the Qur'an so they will come to you saying 
'the Companions of Muhammad have arrived, the Companions of 
Muhammad have arrived.' Then they will come to you and ask you 
about hadith so try to be sparing in giving reports from God's 
Messenger, may the peace and blessings of God be upon him." Ibn 'Aun 
(933) said, "When al-Sha'bi was presented with an issue he was cautious, 
and Ibrahim used to expound on it at great length." Al-Darimi reported 
these accounts. In short, the writing down of hadith, jurisprudence, and 
specific legal issues occurred due to their need for another approach and 
this was because the ulema did not have enough hadith reports and 
accounts from the Companions to suffice in inferring (istinbat) 
jurisprudence according to the principles which the People of the Hadith 
had chosen. They did not take pleasure in studying the pronouncements 
of the religious scholars of the (various) regions, collecting and 
investigating them, for they considered this to be a dubious method. 
They believed, however, that their leaders (Imams) were at the highest 
level of inquiry and they were very much biased toward their colleagues 
and 'Alqama said, "Was anyone among them (the Companions) more 
reliable than 'Abd Allah (ibn Mas'ud)?" and Abu Hanifa said, "Ibrahim 
has more legal acumen than Salim, and if not for the virtue of being a 
Companion I would have said, "'Alqama has more legal acumen than 
Ibn 'Umar. They were astute, intuitive, and quick in shifting the intellect 
from one thing to another which enabled them to deduce the answer to 
issues based on the pronouncements of their teachers. "For everyone will 
find it easy to do that for which he was created.' Each sect rejoicing in its 
own tenets." 

Thus they laid out jurisprudence on the principle of derivation 
(takhrij) which is as follows. 

Each jurist memorizes the book of the one who was the 
spokesman for his associates and the most knowledgeable of the group's 
pronouncements and the most correct in examining its preference of 
opinions (tarjih) so that in each case he takes into consideration the 
interpretation of the ruling. 

Whenever he is asked about a matter or needs some information 
he will look into the pronouncements of his associates which he had 
memorized in case he finds the answer there, and if not: 



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1) He will examine the generalization of their sayings so as to 
make the matter conform to this form. 

2) He will take into account an indication implicit in the 
statement so that he can infer the response on the basis of this. 

3) Sometimes there may be an allusion (ima) or iqtida (logical 
entailment) of certain statements from which the intent can be 
understood. 

4) Sometimes the stated issue may have a parallel instance to 
which it can be referred. 

5) Sometimes he can look into the reason for legislation (ilia) of 
the ruling which has been stated through derivation (takhrij), 
simplification, or ellipsis so that its ruling can be applied to a case other 
than what had been originally been pronounced upon. 

6) Sometimes there would be two statements about a case which 
if combined according to the format of a conjunctive syllogism (qiyas 
iqtirani) or hypothetical syllogism (sharti) will produce the answer to the 
issue. 

7) Sometimes there would be in their statements a thing known 
through pattern and category but not through a comprehensive 
exclusive definition, so that they would have recourse to the linguistic 
experts and take pains to establish its essential properties, in order to 
determine its comprehensive exclusive definition, settle its ambiguities, 
and distinguish its problematic aspects. 

8) Sometimes their sayings might have two possible 
interpretations so they would attend to establishing preference for one of 
the possibilities. 

9) Sometimes the mode of argumentation of the proofs (taqrib 
al-dala'il) for the issues would be obscure so that they would elucidate 
this. 

10) Sometimes certain of those using the methods of derivation 
would make (legal) deductions based on the action of the founders of 
their school, or upon their remaining silent, and so on. 

It may be said of all of these forms of derivation that "the 
opinion derived from such and such a person is thus," or "it is said 
according to the school of so and so," or "according to the principle of so 
and so," or "according to the opinion of so and so" — "that the response to 
the question is such and such." Those ones (who practice legal 



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derivations in this manner) are termed "those exercising legal reasoning 
(mujtahids) within a legal school." A per-son who holds that whoever 
memorizes the Mabsut is a mujtahid, even if he has no knowledge at all 
about hadith transmission, nor even knowledge of one hadith is 
referring to this type of ijtihad according to this principle. Thus the 
process of derivation took place in every school, and proliferated. The 
school which had famous members who became judges and givers of 
legal opinions, whose writings became well-known among people and 
who taught openly, spread to all regions of the world, and still continues 
to spread all the time. The school which had undistinguished members 
who were not entrusted to judge and give fatwas, and who were not 
liked by people, died out after a time. 



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CHAPTER-X 

An Account of the Condition of People 
Before the Fourth Century and After 


You ought to know that during the first and second centuries 
peo-ple did not unanimously follow any particular madhhab. Abu Talib 
al Makki (d. 996) said in his Qut al-Quliib, "Books and compila-tions are 
all later developments, as is holding to the statements which people have 
made, giving legal opinions based on the school of a single individual, 
holding to his opinion, emulating him in every thing, and conducting 
jurisprudence according to his school. This was not the way of the 
people who preceded us in the first and second centuries. 1 " I hold that 
some amount of making legal derivations (takhrij) had arisen after the 
first two centuries, although the people of the fourth century were not 
agreed on the absolute imitation (taqlid) of the school of a single person 
and conducting jurisprudence according to it and emulating his opinion, 
as will be clear from the following exposition. Rather among them were 
the religious scholars and the common people. In cases involving 
consensual issues about which there was no disagreement among the 
Muslims and among the majority of the mujtahids, the common people 
only performed taqlid of the master of legislation (the Prophet). They 
used to learn the manner of ablution, full bath, prayer, zakcit and so on 
from their forefathers or the teachers of their cities — and they acted 
according to this. If some uncommon situation arose they would ask for 
a legal opin-ion about it from whichever mufti they found without 
specifying a legal school. 

It was a trait of the specialists that the People of the Hadith 
among them were deeply involved with hadith scholarship so that they 
possessed hadiths of the Prophet, may the peace and blessings of God be 
upon him, and traditions of the Companions besides which nothing else 
would be required for (deciding) the issue, and abundantly transmitted 
hadith and sound hadith which had been implemented by some of the 
jurists, due to which there is no excuse for not acting upon them. Or 
(they had available) publicly declared opinions of the majority of the 
Companions and Successors which may not properly be opposed. If a 



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person still didn't find any answer to the issue which would satisfy him 
due to conflicting transmissions and lack of clear preference (for any one 
over the other), and so on, he could refer to the discussion of one of the 
past jurists. Then if he found two opinions he could choose the more 
reliable of them, whether it came from the people of Medina or Kufa. 
Those among them who were People of Legal Derivations (ahl al-takhrij) 
carried this out in cases where they found no clear pro-nouncement 
(masrah) (about an issue) and they used independent reasoning within a 
school and became affiliated with the school of a certain person so that it 
was said, "So and so is a Shafici," and, "So and so is a Hanafi." Even one 
of the People of the Hadith might become associated with a legal school 
due to his usually concurring with it, for example al-Nasa'i and al- 
Baihaqqi who were referred to as Shaficis. Thus the positions of giving 
judgments and fatwas came to be entrusted only to mujtahids and only 
mujtahids were called jurists.' Then following these centuries other 
people veered off to the right and left and new developments took place. 
1) Among them were dispute and disagreement in jurisprudence. The 
elaboration of this, based on what al-Ghazzali said, is that when the era 
of the Rightly Guided Caliphs came to an end the Caliphate passed to 
people who held it illegitimately. They were not self-reliant in the 
science of giving fatwas and the (shark a) rulings, thus they were forced 
to ask for assistance from jurists and to associate with them in all 
circumstances. A remnant of the scholars were faithful to the original 
mode and held to the purity of the religion. Thus if they were sought 
after they fled and shunned (the sultans). Thus the people of those times 
saw the greatness of the scholars and the interest of the leaders in them 
despite their avoidance of them (the sultans). Later the scholars 
abandoned (this) refusal and pursued knowledge in order to gain access 
to achieving honors and attaining high rank. Thus the jurists went from 
being sought after to becoming the seekers, and they went from having 
been dignified by their avoid-ing the sultans to being despicable in their 
running after them, except those ones whom God made successful (in 
their resolve). Even before them, persons had compiled works in 
theology and multiplied the (scholastic) questioning and answering, 
objecting and responding, and laying the groundwork of argumentation. 
This had already made an impression on them before the time when 
some of the officials and kings became disposed toward debates about 
jurisprudence and determining the primacy between the schools of al- 
Shafi'i and Abu Hanifa, may God have mercy on him. After that people 
abandoned theology and the disciplines of knowledge of the religious 
sources ( am) and became interested instead in contentious issues, in 
particular those between al-Shafil and Abu Hanifa, may God be pleased 



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with him, while they were tolerant of the disagreements among Malik, 
Sufyan, Ahmad ibn Hanbal and others. They claimed that their goal was 
deducing the finer points of the religious law and determining the 
reasons for legislation according to the legal school and laying out the 
principles of legal opinions. Thus they multiplied the compilations and 
deductions concerning this and they schematized the types of 
disputations and classifications and they persist in this until today. We 
don't know what God the Exalted will decree in later times. (End of the 
gist of what al-Ghazzali said.)4 2) Among them are that people came to 
depend on taqlid, and this taqlid slowly crept into their hearts while 
they remained unaware of it. One reason for this was competition 
among the jurists and their disputing among themselves, so that when 
competition in giving legal opinions occurred among them, whoever 
gave a fatwa about something was contradicted about that fatwa. He 
then replied to this so that the discussion was not brought to a 
conclusion except through recourse to the pronouncement of someone 
who had given a verdict on the issue in an earlier era. An additional 
reason for taqlid was the injustice of the judges, for once most of the 
judges had become unjust and were no longer reliable, only that on 
which the common people did not cast doubt was accepted from them, 
i.e., something which had been ruled on previously. An additional 
reason was the ignorance of the leaders of the people, and people's 
asking opinions from those with neither knowl-edge of the hadith nor of 
the method of deductive inference, as you may observe apparent in most 
of the recent ones. Ibn al-Humam and others warned about this. At that 
time non-mujtahids began to be called jurists.5 3) Most of them began to 
be over-specialized in each discipline so that some claimed to have laid 
the foundation of the discipline of knowing the hadith transmitters Cum 
al-rijetl) and recognizing their ranks in being reliable or unreliable (jarh 
wa to' dil). Then they would go on from this to ancient and recent times. 
Among them were ones who sought out the unusual and rare reports 
even if they lay within the scope of fabrication. Among them were ones 
who increased the argumentation concerning the roots of juris-prudence 
and each deduced in support of his peers principles of argumentation, so 
that he posed an issue, then exhausted it, re-sponded, sought its 
conclusion, defined, classified, and edited, some-times lengthening the 
discussion and at other times condensing it. Some of them began to 
concoct remote instances which were not worthy of the attention of a 
reasonable person and they liked the generalizations and allusions in the 
discussions of the legal interpreters and those of a lower rank, to whom 
neither the knowl-edgeable person nor the ignorant one would care to 



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listen. The harmfulness of this disputation, disagreement, and hair-split- 
ting was close to that of the first crisis (of the Muslim community) when 
people quarreled over rulership and took up sides. Just as the former 
resulted in a tyrannical rulership and events of severity and folly — 
similarly these latter (disputes) led to ignorance, inter-polations, doubts, 
and conjecture from which there is no hope of deliverance. Subsequent 
to them generations arose who relied purely on taqiid, neither 
distinguishing the true from the false nor the argument from the 
inference (istinbat). The faqih of this time was a prattler and wind-bag 
who indiscriminately memorized the opin-ions of the jurists whether 
these opinions were strong or weak, and related them in a loud- 
mouthed harangue; and the hadith scholar (muhaddith) became a 
person who counted up the hadiths whether sound, faulty, or 
nonsensical, and recited them quickly like an entertainer, flapping his 
jaw full-force. I don't say that this is so in all cases, for God has a group 
of His worshippers unharmed by their failure, who are God's proof on 
His earth even if they have become few. No time has come after that 
except that the crisis has increased and taqiid has become more 
prevalent, and integrity has become more and more absent from people's 
hearts until they have become content to leave off examining religious 
matters and so that they say, "We found our fathers following a 
community and we follow in their footsteps. "6 The complaint may be 
raised to God and He is the one to turn to for help. He is reliable and our 
trust is in Him. 

Subsection 

At this point people should be alerted to issues in whose deserts the 
intellects went astray, the feet stumbled and the pens blotted. 1) Among 
them are that (in the case of) these four schools which have been 
recorded and formulated— the community has agreed, or those whose 
opinions are worth considering among them have agreed — on the 
permissibility of performing taqiid of them up until our time. In these 
are benefits which are not concealed — especially in these days in which 
people's endeavors fall very short, their hearts have become of self- 
seeking and everyone delights in his own opinion.' Ibn I-jazm said, 
Taqiid is forbidden, it is not permitted for anyone to follow the opinion 
of someone other than the Prophet of God, may the peace and blessings 
of God be upon him, without proof, due to God's, may He be Exalted, 
saying, "Follow what was revealed to you from your Lord and do not 
follow guardians besides Him," (7:3) and "If it were said to them obey 
what God has revealed to you, they say rather we obey what we found 
our ancestors doing." (2:170), (God) said in praise of the ones who don't 



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perform taqlid, "Give good news to my worshippers who hear advice 
and follow the best of it. Such are those whom Allah guides, and such 
are those possessed of understanding." (39:17-18) And He said, may He 
be exalted, "If you disagree among yourselves about something refer it 
to God and the Prophet if you believe in God and the Last Day." (4:59) 

Thus God, the Exalted, in time of dispute did not allow reference 
to anyone besides the Qur'an and sunna. In this (Qur'anic verse) He 
forbade referring in time of dispute to any person's opinion because it is 
not the Qur'an or sunna. The consensus of all of the Companions, from 
the first of them to the last, and the consensus of the Successors from 
first to last, confirmed the refusal and interdiction of any one of them 
from imitating the opinion of any contemporary or preceding person, so 
that he accepts it totally. 

Therefore it should be known that whoever follows the totality 
of Abu Hanifa's, al-Shafi's or Ahmad's opinions, may God be pleased 
with them, and does not leave aside any opinion of a follower of theirs, 
or of anyone else in favor of that of someone else, and does not rely on 
what is in the Qur'an and the sunna without submitting it to the opinion 
of a particular person — this person has surely and indubitably opposed 
the consensus of the whole Muslim community from its beginning to its 
end and he will not find any pious elder or person among all of the three 
praiseworthy first generations (in agreement with him). Therefore he has 
chosen a path other than that of the believers. We take refuge with God 
from this position. 

In addition, all of these jurists forbade taqlid other than the 
imitation of the pious ancestors, thus whoever follows these jurists 
contravenes their own prohibition. Also, what is it that could make a 
person among them (the founders of the legal schools) or anyone else, 
more worthy of being imitated, than say, 'Umar ibn al-Khattab, 'Ali ibn 
Abi Talib, Ibn Mas'ud, Ibn 'Umar, Ibn 'Abbas or 'A'isha, mother of the 
believers, may God the Exalted be pleased with them — for if taqlid were 
permitted then each one of these people would be more worthy of being 
imitated than anyone else. This statement (of Ibn Hazm) applies to any 
person who has some inkling of ijahad even if only in one issue, and to 
whomever it is clearly apparent that the Prophet, may the peace and 
blessings of God be upon him, commanded one thing and forbade 
another, and that it is neither abrogated by tracing the hadiths and the 
opposing and concurring opinions about the issue nor by finding 
anything abrogating them — nor by seeing a large group of those scholars 
steeped in learning acting upon it, for he sees that the one who opposes 



86 Haz. Shah Wali Allah in the mirror of his juristic views and services 

it has no proof other than analogical reasoning, deduction, or something 
like this. 

In this case there is no reason for opposing a hadith of the 
Prophet, may the peace and blessings of God be upon him, except 
concealed hypocrisy or overt stupidity. This is what Shaikh 'Izz al-Din 
ibn 'Abd al-Salam meant when he said. It is one of the most amazing 
wonders that one of the jurists who practices taqlid agrees on the 
weakness of something taken from his Imam because there is found no 
defense for its weakness, while in spite of this he imitates his (the 
Imam's) decisions about it and ignores the one whose opinion is attested 
to by the Book, sunna, and sound analogies — rigid in his adherence to 
practicing taqlid of his Imam. Indeed he concocts things which oppose 
the manifest mean-ing of the Book and the sunna, and exegetes them by 
remote esoteric interpretations in defense of the person he imitates. He 
(further) said. People always used to ask (opinions from) whichever 
scholar they happened to run across without being restricted to a legal 
school, and without rebuke to any questioner, until these legal schools 
appeared and those who were prejudiced in their favor among the ones 
who practiced taqlid. Thus one of them would follow his Imam despite 
the remoteness of his opinion from textual justification (adalla), 
imitating him in what he held as if he were a messenger sent from 
God — and this is far removed from the truth, far from what is correct, 
and unacceptable to any reasonable person. 

Imam Abu Shama said, "It is incumbent upon one who engaged in 
jurisprudence not to confine himself to the school of one Imam, and that 
he should hold in every issue the soundness of what is closer to the 
indication (dalala) of the Qur'an and the established practice of the 
Prophet (sunna mahkama). This will be easy for him if he is well-versed 
in most of the traditional disciplines. Let him avoid partisanship (to a 
school) and studying the recent modes of disagreement for these are a 
waste of time and will disturb his serenity. It is confirmed that al-Shafi'i 
forbade performing taqlid of himself or anyone else. His associate al- 
Muzani said at the beginning of his Mukhtasar, I summarized this book 
of al-Shafil's teaching and the meaning of his opinions in order to make 
it available to whomever wishes, while I apprise him of his (al-ShafiTs) 
forbidding performing taqlid of himself or of any other, so that this 
person should study it for the sake of his religion and should take care — 
i.e., I admonish whoever wishes to study al-Shafi'i's teaching, that he 
himself forbade taqlid of himself or anyone else. (Ibn Hazm's saying 
applies to) the person who is not learned and follows a particular one of 
the jurists believing that no one like him could err and that what he said 
must definitely be correct, and who has secreted in his heart not to leave 



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off following him even if a proof opposing him would come to light. (On 
this point) there is what al-Tirmidhi reported from 'Adi ibn Hatim — that 
he said, "I heard him, i.e., the Prophet of God, may the peace and 
blessings of God be upon him, reciting this verse, "They took their rabbis 
and monks as Lords besides Allah." The Prophet said, "They didn't used 
to worship them, rather if these ones permitted something for them, they 
considered it to be permitted; and if they forbade a thing they forbade 
it." 


As (it applies) to the one who does not allow a Hanafi, for 
example, to ask for a legal opinion from a Shafii jurist and vice versa, 
and does not allow a Hanafi to follow Imam Shafii for example, this 
person has opposed the consensus of the early generations and 
contradicted the Companions and Successors. This statement (of Ibn 
Hazm) does not apply to the one who obeys only the sayings of the 
Prophet, may the peace and blessings of God be upon him, and only 
considers permitted what Allah and his Prophet made permissible, and 
only considers forbidden what God and his prophet have forbidden. 
However if he doesn't have information about what the Prophet, may 
the peace and blessings of God be upon him, said, neither by way of 
correlating conflicting statements about what he said, nor by means of 
deduction from his saying, he may follow a rightly-guided learned 
person provided that he is correct in what he says, and that he gives a 
clear legal opinion clearly based on the sunna of the Prophet, may the 
peace and blessings of God be upon him. Then if this person should 
oppose what he thinks (to be correct) he should part company with him 
immediately without dispute and insistence. For how can anyone 
condemn this, when asking for legal opinions and giving them has gone 
on among Muslims since the time of the Prophet, may the peace and 
blessings of God be upon him, and there is no difference between always 
asking the same person for legal opinions and asking that person on 
some occasions and another person at other times, once what we have 
agreed on what was mentioned above. How can this be gainsaid when 
we don't believe that a jurist, whoever he may be, received jurisprudence 
through Divine revelation, and that God made obeying him obligatory 
upon us, and that he is infallible. Thus if we follow a jurist, this is due to 
our knowing that he is knowledgeable concerning God's book and the 
sunna of His Prophet, and that his opinion must either be based on a 
pronouncement of the Qur'an or the sunna or be deduced from them 
through some variety of deductive apparatus or that he knows from the 



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context that the ruling (hukm) in a certain case is contingent on a 
particular cause for legislation ( ilia) and his heart is confident in this 
recognition. Thus he draws analogies from some-thing which is textually 
revealed to what is not stated in the revealed texts and it is as if he were 
saying, "I believe that the Prophet of God, may the peace and blessings 
of God be upon him, would say, 'Whenever I find this reason for 
legislation ((Ma) present then the ruling (hukm) in the case will be 
thus'" — and the analogized thing is gradually obtained through these 
generalizations, so that this also is ascribed to the Prophet, may the 
peace and blessings of God be upon him, but in this method there are 
conjectures (zunun). 

If this were not so then no believer would follow a mujtahid, 
since if a hadith from the infallible messenger whose obedience God 
made obligatory upon us reached us by a correct chain of transmission, 
indicating something which conflicted with his (the mujtahid' s) opinion 
and we were then to ignore the hadith in favor of obeying that 
guesswork— who would be more evil than us, and what would be our 
excuse on the day when people will stand before the Lord of the 
Worlds?' 

2) Among these (difficult issues) is making derivations (takhrij) 
according to the statements of the jurists and following the literal 
meaning of the hadith. Each has a fundamental basis in the reli-gion, and 
in each era researchers among the ulema have employed each of them. 
Among them there have been those who minimized one of them and 
emphasized the other, and vice versa. Thus it is not suitable to neglect 
one of them entirely as did the majority of the factions. Rather the pure 
truth is to correlate one with the other and to compensate for the defects 
of each through the other. This is the opinion of Hasan al-Basri, "Your 
practice, by God, besides Whom there is no other God, should lie 
between the two— between the excessive and the deficient." Thus, he 
who is one of the People of the Hadith must subject what he selects to 
critical examination and uphold it against the opinion of the mujtahids 
among the Successors, while whoever is one of those using deductive 
reasoning (takhrij) must make something part of his methods (sunan) 
only while taking care that it cannot oppose the sound obvious hadith, 
and while guarding himself against speaking from personal opinion in a 
case about which there exists a hadith or report from a Companion, 
insofar as he is able. 

The hadith scholar (muhaddith) does not have to be over-scru- 
pulous about observing the principles which his associates established 
for which there are no textual stipulations of the law-giver, so that 



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through this he would reject a sound hadith or analogy, such as the 
rejection of whatever has the least flaw in reaching back to the Prophet 
or being uninterrupted. Ibn Hazm did this when he rejected the hadith 
forbidding musical instruments due to a suspicion of a break in the 
transmission of al-Bukhari, despite the fact that on its own the hadith 
was soundly connected to the Prophet. Rather, one should have recourse 
to something like this only in the case of another conflicting report. 
Another case is the hadith scholars' saying, "So and so preserved more 
hadiths of a certain person than someone else, so we prefer his version to 
the hadith of the other for this reason" — even if there were one thousand 
reasons for preferring the other's version. The concern of the majority of 
hadith transmitters when transmitting the meaning of the hadith was 
with expressing the essentials of the meanings, not the (precise) 
expressions which are recognized by those experts in the Arabic 
language. Thus they drew inferences from things like the "fa" or the 
"waw" and one word preceding or coming after another and other sorts 
of hair-splitting. Often another transmitter will express this same 
narration, replac-ing one word instead of another. The truth is that 
whatever the transmitter reports should be literally taken as the speech 
of the Prophet, may the peace and blessings of God be upon him, then if 
another hadith or evidence comes to light it must also be taken into 
account. The person using deductive methods should not deduce a 
meaning which his peers would not find conveyed by the same 
expression and which neither native speakers nor scholars of the 
language would understand from it. Nor should he derive an opinion 
based on identifying the reason (takhrij al-manat) for leg-islation in a 
case where judgment was pronounced for no apparent reason, or 
applying a parallel case to it about which the interpreters disagree and 
opinions contradict each other, for if his associates had been asked about 
this issue perhaps they would have drawn a parallel to a parallel 
instance which would exclude it, or perhaps they would have cited a 
reason for legislation (cilia) other than that which he himself derived. In 
fact, derivation is only permitted because it is a form of following 
(taqlid) of a mujtahid and it is only effected based on what may be 
understood from his statement. He must not reject a hadith or report of a 
Companion on which the Muslims have agreed in favor of a principle 
which he himself or his peers derived, such as in the case of the hadith of 
the milk-giving camels, or like the annulment of the share of those with a 
relationship. Indeed, taking account of the hadith is more necessary than 
caring about this derived principle and this is what al-Shafi'i meant 
when he said, "In the case when I have held something or established it 



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as a principle, if there should later come to your attention some saying of 
the Prophet, may the peace and blessings of God be upon him, 
conflicting with what I said, then what he, may the peace and blessings 
of God be upon him, said, must be upheld." 

3) Among the (difficult issues) is that the investigative study of 
the Qur'an and the sunna for the purpose of recognizing the shari'a 
rulings is at various degrees. 

A) The highest of them is achieved by a person through actually 
knowing the rulings or virtually knowing them, which enables him to 
usually give an answer to the ones asking for legal opinions about 
certain circumstances insofar as his answer usually concerns some 
matter about which there is agreement. This is what is specified by the 
designation "ijtihad." 

B) This ability (to perform ijtilzad) is sometimes achieved 
through scrutinizing all of the reports and studying all of the anomalous 
and exceptional ones among them as Ahmad ibn Hanbal indicated; 
together with the recognition of the referents of the speech in such a way 
that the rational person who knew the language would concur, as well 
as mastery of the knowledge of the reports of the pious ancestors 
through collating the discrepancies and organizing the inferences, and so 
on. 

C) Sometimes the ability to perform ijtihad is acquired by 
becoming expert in the method of derivation (takhrij) according to the 
legal school of one of the authorities in jurisprudence, together with 
knowing a sufficient body of prophetic sunnas and reports from the 
Companions, so that he can know that his opinion does not oppose the 
consensus, and this is the method of those who use derivation. 

D) The middle level of study draws on both methods in that he 
acquires a knowledge of the Qur'an and sunna which will enable him to 
recognize the preeminent issues of jurisprudence that have been agreed 
on together with their detailed proof texts (adilla tafsiliyya). He should 
have achieved as well the highest degree of knowledge of certain issues 
of ijtihitd through knowing about their proof texts (adilla), the 
preference of certain opinions over others, the criticism of derivations, 
and recognizing the correct from the false. Even if he has not perfected 
the critical apparatus to the same extent as the absolute mujtahid (al- 
mujtahid al-mutlaq) still someone like him can select the better among 
two schools of opinion if he knows their proofs (dalil), while realizing 
that his opinion is not operative in the same sphere as the ijtihad of the 
mujtahid, and is not admissible in the adjudication process of the judge. 



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nor is it valid for the mufti in giving legal opinions. He is permitted to 
abandon certain derivations which people previously used if he learns 
that they lack validity and therefore the scholars who do not claim to be 
doing absolute ijtihad continue to make compilations, classify, make 
derivations, and give preference (in legal studies). Since ijtihad has 
become subdivided in the view of the majority and derivation has as 
well, and since the goal is only to obtain conjectural opinion (zann) and 
to base legal obligation on it, then nothing is disqualified by this. 

E) As for people below this level, their course in those 
commonly arising questions is usually what they have acquired from 
their associates, ancestors, and compatriots among the legal schools that 
are followed. In those issues which rarely occur they follow the fatwas of 
their muftis, and in judgments they follow what their judges rule. We 
have found the reliable ulema from every legal school proceeding in this 
manner, formerly and recently, and this is what the founders of the 
schools bequeathed to their associates. 

In al-Yawaqit wa'1-Jawahir (Sapphires and Jewels) it is reported 
that Abu Hanifa, may God be pleased with him, used to say, "One who 
does not know my indicating factor (dalil) must not give a fatwa based 
on my opinion," and he, may God be pleased with him, whenever he 
gave a fatwa, used to say, "Al-Nu man ibn Thabit, i.e., his own name, 
has this view and this is the best we were able to do, so if someone 
comes up with something better, this is more correct." Imam Malik, may 
God be pleased with him, used to say, "Anyone's opinion may either be 
accepted or rejected except that of the Prophet of God, may the peace 
and blessings of God be upon him." 

Al-Hakim and al-Baihaqqi reported that al-Shafi'i used to say, "If 
there is a sound hadith, that becomes my opinion," and in an-other 
report, "If you see that my opinion opposes this hadith, then act 
according to the hadith, and throw my opinion out the window." One 
day he said to Muzani, "0 Ibrahim, don't emulate me in everything I say, 
but look into it on your own, for this is the religion." He used to say, may 
God be pleased with him, "There is no final word (hujja) in anyone's 
saying except that of the Prophet of God, may the peace and blessings of 
God be upon him, even if there are many who hold such an opinion; nor 
in an analogy, nor in anything else, and moreover there is nothing at this 
level except that obeying God and his Prophet with full acceptance is 
mandatory." Imam Ahmad (ibn Hanbal), may God be pleased with him, 
used to say, "No one is allowed to argue with God and his Prophet," and 
he also said to a man, "Neither perform taqlid of me, nor Malik, nor al- 



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Auza'i, nor Nakha'i, nor others, and follow the rulings insofar as they 
took them from the Book and the sunna. No one should give a legal 
opinion unless he knows the opinions given by the ulema in making 
shari 1 rulings on issues and knows their legal schools. Thus when he is 
asked about an issue he will know that the scholars whose legal school 
he follows agreed upon it, so there is no harm for him in saying that this 
is permitted and that is not permitted, for his opinion is by way of 
reporting. If there have been divergent opinions about the issue, there is 
nothing wrong in his saying, "This is permitted according to so-and-so's 
opinion and not pennitted according to so-and-so's opinion." It is not up 
to him to choose, for in that case he would be responding with the 
opinion of one of them whose proof (hujja) he did not know. 

It is reported that Abu Yusuf, Zufar, and others, may God be 
pleased with them, said, "It is not permissible for anyone to give legal 
responses based on our opinions without knowing from where we got 
them." It was said to Usam ibn Yfisuf,may God be pleased with him, 
"You usually disagree with Abu Hanifa may God be pleased with him." 
He replied, "Abu Hanifa, may God be pleased with him, was given a 
level of comprehension which we were not, and he discerned through 
his comprehension things which we don't understand, thus it is not 
permissible for us to give legal opinions on the basis of his statements 
when We don't understand them." 

Muhammad ibn al-Hasan was asked, "When is it permitted for 
someone to give legal opinions?" Muhammad replied, "When he is right 
more often than he is wrong." Abu Bakr al-Askaf was asked, "if there is a 
scholar in a city who is more knowledge-able than anyone else, is it 
permitted for him not to give fatwas?" He replied, "If he is one who is 
capable of doing ijtihad, it is not permitted for him (not to respond)." He 
was asked, "What makes a person capable of doing ijtihad?" He replied, 
"That he knows the reasons (indications) of the issue and is able to 
debate it with his contemporaries if they disagree." It was said, "The 
minimal condition for ijtihad is having memorized al-Mabsut." (End of 
quotes from Sapphires and Jewels.) 

In the Al-Bahr al-Ra'iq (The Pure Sea) it is reported from Abu al- 
Laith that he said, Abu Nasr- was asked about an issue which had been 
put to him previously, "What would you say. May God have mercy on 
you, if you had four books before you — the book of Ibrahim ibn Rustam, 
the Adab al-Qadi in the recension of al-Khassaf, Kitab al-Mujarrad, and 
Kitab) al-Nawadir in the recension of Hisham. First of all, would you 
permit us to give legal opinions based on them, and secondly, are these 
books commendable, in your opinion?" He replied, "What has been 



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correctly reported from our associates is a body of knowledge which is 
approved, appreciated, and worthy of acceptance, but as for giving 
fatwas — while I do not think that anyone should give legal opinions 
based on what he doesn't understand, nor should he try to take up 
people's burdens — however if it concerns well-known issues which have 
become apparent and been made clear by my associates, I would hope 
that it would be possible for me to rely on them." 

It is also cited in the Bahr al-Ra'iq, "If someone has blood drawn 
or backbites and he considers himself to have broken the fast, so that he 
eats — then if this person did not ask a jurist for a legal opinion nor did 
the (correct) hadith reach him — must he make recompense (kaffara) 
because this is merely ignorance, and there is no excuse for this within 
the domain of Islam? Then if he had asked a jurist for a legal opinion 
and he had given him one, there would be no penalty against him, 
because the ordinary person must perform taqlid of the knowledgeable 
scholar ('alim) if he has confidence in his fatwa, so he should be excused 
for what he did, even though the mufti was in error in the opinion he 
delivered. If the man did not (personally) request the opinion but he 
knew about the hadith, i.e., the saying of the Prophet, may the peace and 
blessings of God be upon him, "The cupper (one who has his blood 
drawn) and the cupped have broken their fast" and his pronouncement, 
may peace be upon him, "Backbiting breaks the fast," and he didn't know 
that this had been abrogated nor its interpretation, then there should be 
no penalty assessed against him according to the two of them since it is 
obligatory to act according to the manifest sense of the hadith. Abu 
Yusuf, however, disagrees with this since he holds that it is not up to the 
ordinary person to act upon a hadith since he doesn't know about what 
abrogates or is abrogated. If a person has touched or kissed a woman out 
of lust or applied kohl, "so that he presumes that he has broken his fast, 
then he eats, he must pay a penalty, unless he had asked a jurist for a 
legal opinion and the jurist told him to break his fast, or he had heard a 
hadith report about this." If a person had made the intention to fast 
before noon, and then broke his fast, he would not have to make the 
compensatory payment according to Abu Hanifa, may God be pleased 
with him, thus he contradicts both of the other two in this way, as 
reported in the Muhit. 

From this exposition it has become evident that the school of the 
common person is the fatwa of his mufti. Also found in the Muhit in the 
chapter on "Making up for the Missed Prayers" is that if a common 
person doesn't have a specified legal school then his course of action 



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should be based on the legal opinion of his mufti as the ulema have 
declared. Thus if a Hanafi gives him an opinion he should make up for 
the afternoon and sunset prayers, and if a Shafi'i gives him an opinion 
then he cannot make them up, and there is no consideration of his 
personal opinion. If he doesn't ask anyone for a fatwa, or finds out what 
is sound according to the school of a mujtahid then this is permitted for 
him, and he has no need to revise this. 

Ibn al-Salah (1245) said, "If a Shafi'i finds a hadith which 
contradicts his school, then he should investigate further. If he has full 
competence in the apparatus of absolute ijtihad or competence 
concerning that topic or issue, he can choose independently in acting 
upon the hadith. However if he is not fully competent to do ijtihad and 
after he investigates he finds that which opposes the hadith to be 
problematic, and finds no satisfactory answer to this objection, then he 
may act according to this hadith on the condition that any non-Shafi'i 
independent Imam (founder of a school) did so, and he is excused in this 
instance for abandoning the school of his Imam. Al-Nawawi approved 
of this and affirmed it. 

4) Among them (difficult issues) are that most instances of 
disagreement among jurists, especially in cases where there appear 
sayings of the Companions which fall on two sides, such as the Takhirs 
(pronouncing Allau Akbar) of the Days of Tashriq, the number of 
Takhirs of the two Id prayers, the marriage of one in Ihram, (the special 
sanctified state of one on the Hajj pilgrimage), the manner of doing 
Tashahhud of Ibn 'Abbas and Ibn Ma'sud, silently (or loudly) 
pronouncing the Bismillah and the Amin, pronouncing the formula of 
the call to prayers twice or once during the lqama, and so on — have to 
do with giving pre-ponderance to one of the two opinions. The pious 
ancestors did not disagree on the essential legality on all of these 
opinions, but rather their disagreement concerned which was the more 
correct of the two things, and a parallel to this is the differing of Qur'an 
reciters on the (acceptability of) variant modes of reading of the Qur'an. 

They usually explained this matter by saying that the 
Companions differed although they were all correctly guided and 
therefore the ulema continue to endorse the legal opinions of the muftis 
in issues of independent reasoning, and to accept the judgment of the 
judges, and on some occasions they act so as to differ from their legal 
schools. In these situations you will see the leaders of the legal schools 
holding each opinion to be valid and dealing with disagreement about 
the opinion of one of them in such a way that he will say, "This is the 
more prudent," "this is preferable," and, "I like this better." Or he may 



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say, "We only know about this opinion," and this occurs often in the 
Mabsut, the Athar of Muhammad (Abu Yusuf), may God be pleased 
with him, and the discussions of al-Shafi'i, may God be pleased with 
him. Then there succeeded them a body of people who abbreviated the 
discussions of the jurists in such a way that they emphasized the 
disagreement and maintained the preferences of their leaders, and 
whatever was reported from the pious ancestors which reinforced 
remaining within the school of their associates and not going outside of 
it in any circumstance. This is either due to human nature, for every 
person likes what his peers and nation have chosen even in dress and 
cuisine; or due to some arbitrary leap arising in considering the proof, or 
due to other reasons of this sort. Some took this to be fanaticism in 
religion, but they were completely free from this. Among the 
Companions and Successors there were those who recited the Basmala 
and those who did not, and those who pronounced it aloud and those 
who did not, and those who did the Qunut prayers at the time of the 
dawn prayer and those who did not; and those who performed the 
ablution after having blood drawn, nose-bleeds, and vomiting, and those 
who did not; and those who believed in doing ablution after touching a 
woman out of lust or touching the male member, and those who did not; 
and among them were those who did ablution after eating things cooked 
in fire and those who did not; and those who did ablution after eating 
camel's meat and those who did not. 

In spite of these differences, they used to pray behind one 
another, as Abu Hanifa or his associates and al-Shafi'i and others, may 
God be pleased with them, used to pray behind the Imams from Medina 
who were Malikis and others even if they neither recited the Basmala 
silently nor aloud; and Harun al-Rashid led the prayer as Imam after 
having blood drawn and Imam Abu Yusuf prayed behind him and 
didn't repeat the prayer. Imam Ahmad ibn Hanbal held that ablution 
was necessary after a nosebleed and being leeched so someone once 
asked him, "If the Imam had experienced a flow of blood and had not 
done ablution, would you pray behind him?" He said, "How could I not 
pray behind Imam Malik and Sa'id ibn al-Musayyab?" 

It is reported that Abu Yusuf and Imam Muhammad used to do 
the two 'Id prayers performing the two Takhirs according to Ibn 'Abbas 
because Harun al-Rashid preferred the way of performing the Takhir of 
his ancestor. Once al-Shafi'i, may God be pleased with him, prayed (in 
the morning) near the grave of Abu Hanifa, may God be pleased with 
him, and did not perform Qunut out of respect for him. He also said. 



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"sometimes we incline toward the Iraqi (Hanafi) school (of law)." We 
have previously cited the answers given by Malik, may God be pleased 
with him, to al-Mansur and Harun al-Rashid. In the Fatawa al- 
Bazzaziyya it is reported that the second Imam — i.e., Abu Yusuf, may 
God be pleased with him, prayed the Friday prayer having performed 
the full ablution at a public bath. He led the prayer and then the 
congregation dispersed. After that he was informed that a dead mouse 
had been found in the well of the bath-house. He then said, "In this case, 
we will use the response of our brothers from the Medinan (Maliki) 
school that if the water reaches the amount held by two large jars it 
won't become ritually impure. 

Imam al-Khujandi was asked, may God be pleased with him, 
about the case of a man from the Shafi'i school who had not prayed for a 
year or two, then he transferred to the school of Abu Hanifa, may God 
be pleased with him. How should he make up for these missed prayers? 
Should he make them up according to the Shafi'i school or the Hanafi 
school? He replied, "He should make them up according to either of the 
schools provided that he believes in its validity." In the Jami'al-Fatawa it 
is stated, "If a Hanafi said that he had married a certain woman who had 
been divorced by the triple formula; then he asked a Shafi'i for a legal 
opinion and he answered that she was not divorced and that his vow 
was invalid — there was no harm in his following the Shafi'i in this issue 
because many of the Companions were on his side." 

Muhammad (Abu Yusuf), may God have mercy on him, said in 
his Amali, "Even if a jurist says to his wife, you are definitely divorced, 
and he considers that this is equivalent to a triple divorce, then if a judge 
gives a judgment that the divorce is revoca-ble, he is permitted to live 
with her." 

Likewise is every department about which the jurists disagree, 
whether in forbidding, permitting, freeing slaves, taking property, and 
so on. The jurist who has received a verdict counter to his own view 
must act according to the judgment of the Qadi and forgo his own 
opinion, and he must hold himself to do what the judge requires and act 
according to what he told him. Muhammad (Abu Yusuf), may God have 
mercy on him, said, "Likewise is the case of a man who does not have 
knowledge and is confronted by some problematic situation, so that he 
asks the jurists about it and accordingly they give him a legal opinion 
concerning what is permitted or forbidden. However, the judge of the 
Muslims hands down a judgment against him which contradicts the 
fatwa, for in fact this is a matter about which the jurists disagree. In this 



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instance, the person must accept the judgment of the judge and leave 
aside what the jurists had responded to him. 

5) Among (new developments) are that I have found some of 
them claiming that everything that is found in these voluminous 
commentaries and thick tomes of legal opinions are the opinions of Abu 
Hanifa and his associates; so that they do not make a distinction between 
an actual original statement and the derived statement. They do not 
understand the meaning of the jurists' statement that according to the 
derivation of al-Karkhi the ruling on a issue is thus, and according to al- 
Tahawi it is thus, nor do they make a distinction between their saying, 
"Abu Hanifa said thus," and their saying, "the response to this case 
according to the school of Abu Hanifa is thus," or "based on the principle 
of Abu Hanifa is thus," nor do they heed what the Hanafi scholars like 
Ibn al-Humain and Ibn Nujaim said about the case of the ten by ten 
(water) and similarly the case of the condition of having to be a mile 
distant from water in order to do the ablution with sand and other cases 
like these — i.e., that these are derivations done by members (of a legal 
school) and not, in fact, part of the school. Some people claim that the 
legal school is founded upon these controversial disputes mentioned in 
the Mabsut of al-Sarakhsi, the Hidaya, the Tabyie and works like these. 
They don't realize that the first ones among whom these disputations 
appeared were the Mu'tazila, and that their legal school is not founded 
upon these. Then the ones who came later liked using these (disputes) 
for expanding and honing the minds of the students, and whether it was 
for some other reason than that, God knows better. Many of these 
ambiguities and doubts may be resolved through what we have set out 
in this chapter. 

6) Among them (new developments) are that I have found some 
of them claiming that the basis of the disagreement between Abu Hanifa 
and al-Shafi'i, may God be pleased with both of them, is founded on 
those principles which are mentioned in the book of al-Pawi and other 
similar ones. Rather the truth is that most of them are principles derived 
on the basis of their opinions. According to my view, the statements that: 

A) the specific pronouncement (khass) is clear and it needs no 
explanation, 

B) that some additional phrase (in a hadith) can abrogate, 

C) that a general statement ((amm) is as certain as a particular 
one (khass). 



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D) that there is no preference given (to a hadith) due to a greater 
number of transmitters, 

E) that implementing the hadith of a non-legal expert is not 
obligatory when it would block the option of using personal opinion, 

F) that particularizing a general statement by the import 
(mafhum) of a condition and a quality' is absolutely out of the question 

G) that what a command requires is absolutely incumbent; and 
other issues like these are principles derived from the statements of the 
founders (of the legal schools). These are not soundly transmitted from 
Abu Hanifa and his associates, and holding to them and taking trouble 
to refute what contravenes them among the practices of the earlier ones 
in their inferences as Al-Pazdawi and others did, is not more correct than 
holding what opposes these and responding with what refutes them. 

Examples of Type A 

An example is that they (the Hanafis) made a principle that the 
specifying expression (khass) is clear, and that no explanation should be 
appended to it and they derived this based on the work of the earlier 
ones concerning His, may He be Exalted, saying, "Bow down and 
prostrate yourselves," and the Prophet's, may the peace and blessings of 
God be upon him, saying, "The prayer of a person is not rewarded 
unless he straightens his back in the bow and the prostration," insofar as 
they did not hold that coming to rest (during the bow and prostration) to 
be obligatory, nor did they consider that the hadith was in explanation 
of the Qur'anic verse. So there was raised as an objection to them what 
the earlier ones had made of His, may He be Exalted, saying, "Rub your 
hands over your heads and the Prophet's, may the peace and blessings of 
God be upon him, rubbing it up to his forelock, insofar as they (the 
earlier ones) had made it an explanation; and His, may he be Exalted, 
saying, "The male fornicator and the female fornicator, scourge each of 
themand His, may He be Exalted, saying "Cut off the hand of the thief, 
male or female, and His, may He be Exalted, saying, "Until she marries a 
husband other than him, and those things which had been appended to 
these (specific injunctions) as explanations after that, so that they had to 
take great pains in responding as is mentioned in their books. 

Examples of Type B 

They formulated the principle that the general statement (amm) is as 
(legally) definitive as the particular one (khass) and they derived it on 
the basis of what the preceding ones had done with His saying, may He 



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be Exalted, "Recite of the Qur'an what is easy for you,' and the Prophet's, 
may the peace and blessings of God be upon him, saying, "There is no 
prayer without the opening chapter (al-Fatiha) of the Book insofar as 
they had not considered it (the Prophet's report) a specification, and in 
his, may the peace and blessings of God be upon him, saying, "There is a 
one-tenth zakat ('ushr) on spring-watered land" and his, may the peace 
and blessings of God be upon him, saying "There is no sadaqa (alms tax) 
on what is below five Awaq (of silver), insofar as they didn't consider 
the first hadith to be specified by the second, and so on with other 
subjects. Then this objection was presented to them that His, may He be 
Exalted, saying, "Such a sacrifice as can be afforded, which is general 
('amm) is (specified as) the female sheep and what is worth more 
according to the explanation of the Prophet, may the peace and blessings 
of God be upon him, so they were reluctant to answer this. 

Examples of Type F 

They made a principle that there should be no consideration (in 
a command) of the object (mafhum) of a condition and a description, and 
they derived this based on what the earlier ones had done with His 
saying, may He be Exalted, "And whoever among you does not have the 
capacity." Then many objections were raised to them based on the other 
rulings such as his, may the peace and blessings of God be upon him, 
saying, "There is zakat on the camel which is a pasture animal" so that 
they had to make a lot of efforts to respond to these. 

Examples of Type E 

They made a principle that the hadith of a non-jurist does not need to be 
acted on if recourse to personal opinion is blocked by it, and they 
derived this from what they did in rejecting the hadith about the female 
animals which are sold without being milked for some time. Then there 
was raised to them an objection to the hadith about laughing aloud 
(during prayer), and the hadith about the fast not being invalidated by 
eating out of forgetfulness, so they were reluctant to respond. 

Cases of what we mentioned are many, not hidden from the one 
who pursues the investigation, whereas extensive expositions beyond 
having this pointed out will not suffice in the case of the person who 
does not investigate. The opinion of the researchers should suffice you as 
proof about this issue, i.e., that it is not necessary to act on the basis of a 
tradition of a person who is known for accuracy and justice but not for 



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legal acumen since the option of using personal opinion is blocked, such 
as in the case of the hadith about the female animals which are sold 
without having been milked for some time. This is the opinion of Isa ibn 
Iban and many of the later ones preferred this, while al-Karkhi and 
many of the ulema followed him in holding that the condition that the 
transmitter have legal acumen does not hold due to the precedence of a 
report over an analogy. They said, "This opinion was not transmitted 
from our leaders, rather what was transmitted from them is that a single 
hadith report has precedence over any analogy." Don't you see that they 
implemented the report of Abu Huraira concerning the fasting person 
who eats or drinks out of forgetfulness, even if this opposes analogy, so 
that Abu Hanifa, may God be pleased with him, said, "If not for the 
report I would have held the analogy (to be correct)." You should also be 
guided to what is correct by their disagreement over many of the 
derivations taken from their practice and the fact that some of them 
refute others. 

7) Among (new developments) is that I have found that certain 
people claim that there are only two groups with no third — "the 
Literalists" (zahiriyya) and "the People who Exercise Personal Opinion" 
(ahl al-ra'y)— and that whoever uses analogy or deduction is one of the 
people of personal opinion — no, by God! Rather isn't what is meant by 
personal opinion the same as using under-standing and reason? This is 
not absent from any scholar, nor is this the personal opinion which is 
absolutely not based on the sunna, for absolutely no Muslim would 
claim to be doing this, nor is what is meant the ability to make 
deductions and use analogy (qiyas), for Ahmad, 'ishaq, and even al- 
Shafi'i too, unanimously were not "People of Personal Opinion," while 
they used inferential methods and analogical reasoning. Rather what is 
meant by "People of Personal Opinion" is a group who reopen for 
derivation issues agreed on among Muslims or among the majority of 
them on the basis of one of the early persons. Thus what they do in most 
cases is to relate parallel cases to one another, and to refer to one of the 
theoretical principles without consulting the hadiths and reports. The 
Zahiri (literalist) is one such as Dawud Ibn Hazm, who neither accepts 
using analogies nor accepts using the reports of the Companions and 
Successors. Between the two groups are researchers among the People of 
the Sunna such as Ahmad ibn Hanbal and 'ishaq (ibn Rahwayh). 

We have gone on about this here at very great length so that we 
have ranged beyond the discipline which was our subject in this book, 
although this is not our habit. This is due to two reasons. One of them is 
that God, may He be Exalted, put into my heart at one time a measure by 
which to recognize the cause of every difference arising in the religious 



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community of Muhammad, may peace and blessing be on its master, 
and what is correct according to God and His Messenger, and He also 
enabled me to confirm this by rational and textual proofs so that there 
should remain no ambiguity or doubt. Thus, I intended to write a book 
called "The Summit of Fairness in Explaining the Causes for Juristic 
Disagreement" and to unequivocally clarify in it these subjects and to 
copiously cite evidence, examples, and ramifications while sticking to 
the middle course between excess and negligence at each stage, 
comprehending all sides of the debate and the principles of what is 
intended and sought. Up until now I have not been free to do this so that 
when the discussion here reached the source of the disagreement, I was 
led by my inner motivation to explain whatever portion I easily could. 

The second reason for going on at some length is the 
factionalism of the people of today and their disagreement and 
confusion concerning some of the things that we mentioned, to the point 
that they almost assault those who recite to them God's verses, and "our 
Lord is the Merciful, the one to ask for help against the blas-phemies you 
utter." 



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CHAPTER-X1 


Ijtihad - Meaning and Grades 

In the writings of shah wali Allah a very important discussion is Iitihad, 
The discussion, among other things, deals with the meaning of ijtihad, 
scape and grades of it. Aport from his other writings, al -Insaf and 
Iqdul-Jid deal with the different important aspects of ijtihad in a fairly 
detailed way. What follows is a systematically arranged exposition of the 
discussion scattered about in his different -writings. 

The Meaning of Ijtihad 

The literal meaning of ijtihad is the expending of maximum 
effort in the performance of an act. Technically, it is the effort made by 
the mujtahid in seeking knowledge of the ahkam (rules) of the shari' ah 
through interpretation. This definition implies the following: 

• That the mujtahid should expend the maximum effort, that is, he 
should work to the limits of his ability so much so that he realises his 
inability to go any further. 

• That the person expending the effort should be a mujtahid. An effort 
expended by a non-mujtahid is of no consequence, because he is not 
qualified to do so. 

• The effort should be directed towards the discovery of the rules of the 
shari'ah that pertain to conduct. All other types of rules are excluded. 

• The method of discovery of the rules should be through interpretation 
of the texts with the help of the other sources. This excludes the 
memorisation of such rules from the books of fiqh or their identification 
by the mufti. Thus, the activity of the faqih and the mufti cannot be 
called ijtihad. 

The Task of the Mujtahid 

The primary task of the mujtahid, as is evident from the above 
definition, is to discover the ahkam of the shari'ah from the texts. An 
important fact stated in the study of the sources is that the texts of the 
Qur'an and the Sunnah, dealing with legal matters, are limited, while the 
new problems are unlimited. The task of the jurist, therefore, after a 
study of the primary sources, is to: 



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• discover the law that is either stated explicitly in the primary sources 
or is implied by the texts, that is, discover it through literal 
interpretation; 

• extend the law to new cases that may be similar to cases mentioned in 
the textual sources, but cannot be covered through literal methods; and 

• extend the law to new cases that are not covered by the previous two 

•methods, that is, they are neither found explicitly or impliedly in the 
texts nor are they exactly similar to cases found in the texts. 

The three tasks mentioned above not only tell us something 
about the nature of the sources, the way they point to legal rules, but 
also highlight the manner in which interpretation of the texts or ijtihad is 
to take place. In other words, these tasks tell us something about the 
different methods or the modes of ijtihad exercised by the jurist. An 
understanding of the modes of ijtihad helps draw a clear line between 
the literal methods of extending the law and the rational methods. 
Before the modes of ijtihad are studied, it is important to examine some 
basic assumptions in the light of which the jurist appears to be 
undertaking his task. 

Basic Assumptions Made by the Mujtahid 

The primary goal of all interpretation and ijtihad is to discover the 
intention of the Ultimate Lawgiver, Allah Almighty, with respect to the 
rules of conduct. The discovery of the intention of the Lawgiver in the 
texts leads to the assurance that the legal rules derived are truly Islamic. 
Obedience to such rules leads in turn to the formation of an Islamic legal 
system, a system based on norms determined by the Lawgiver. If the 
rules laid down are the result of human invention, the legal system 
cannot be called Islamic; all laws must conform with the intention of the 
Lawgiver. 

Discovery of the true intention of the Lawgiver requires that the 
jurist interpreting the texts stay close to the literal and implied meanings 
of the texts and not give way to his own whims and fancies. The closer 
he stays to such meanings the greater the assurance that the norms are 
Islamic. In staying close to the texts and their literal as well as implied 
meanings, the jurist is guided by two main assump-tions: 

1. The first assumption in the words of al-Shafi'i is: "For those who 
follow the din of Allah there is guidance and evidence in the Book of 
Allah for each incident faced by them." This means that the Qur'an will 



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provide guidance, either directly or indirectly, on all legal issues that the 
Muslims may face. 

2. As already stated, the number of verses in the Qur'an dealing with 
legal issues are limited, while the legal cases or issues faced by the 
Muslims, or to be faced by them, are unlimited. Even the texts of the 
Sunnah dealing with legal issues do not go beyond two thousand 
traditions. This means that there has to be some method, or methods, of 
extending the general principles in the Qur'an and the Sunnah to cover 
all legal issues. These methods are evident through a study of the 
sources, but become even more obvious when the modes of ijtihad are 
examined. 

Texts That are not Subject to Ijtihad 

There are certain texts in which there is no need for the mujtahid to 
expend an effort. The reason is that these texts are the most authentic 
and the meanings found in them are most clear. The meaning of such 
texts can be discovered by anyone reading these texts. 

In technical terms, the issue revolves around the meanings of the word 
definitive (qat'i) and probable (zanni). These words have a double 
meaning, as was explained in the discussion of the sources in Part 2. A 
text may be qat'i al-thubut, that is definitive with respect to its 
transmission, and qat'i al-dalalah, that is, definitive with respect to its 
meaning. 3 All the verses of the Qur'an are definitive with respect to 
their authenticity or transmission and so are the texts of the mutawatir 
sunnah. There are very few of these texts that are definitive with respect 
to meaning. Being definitive with respect to meaning implies that only a 
single meaning is to be found from the text. For example, 100 stripes in 
the text pertaining to zinc (unlaw-ful sexual intercourse) means 100 
stripes, nothing more and nothing less; it is, therefore, definitive. There 
is no need for ijtihad to determine the number. As compared to this 
number, the meaning of "stripes" is not so clear. Are the stripes to be 
inflicted with a stick, a whip or something else? With what force are they 
to be applied? To what part of the body? All these questions require an 
interpretive effort by the mujtahid. 

There can, therefore, be no ijtihad in texts that are definitive with 
respect to transmission as well as meaning. This meaning is also found 
in a principle that is stated by the Shafiq jurists: "There is no ijtihad with 
the 'nass." The word nass in this principle does not mean "text." Na is the 
name for a word or text that gives a single or definitive meaning. Some 
writers have incorrectly interpreted this word to mean text for purposes- 



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of this rule, which has the effect of eliminating a major part of the 
activity called ijtihad. The reader should read such texts with caution. 

Some of the cases that are considered to be outside the ambit of 
ijtihad are general obligations and proscriptions: the obligation of 
prayer; the obligation of fasting; the prohibition of zinc and so on. All 
such cases are those in which definitive texts with definitive meanings 
are to be found. 

In short, ijtihad is relevant wherever there is a possibility of a 
text having more than one meaning. Such texts, whether they are defini-i 
five or probable with respect to transmission, are always probable with 
respect to meaning (zanni Al-dalalah). Ijtihad in this context pertains to 
the discovery of the actual meaning by an examination of the strength of 
the meaning in various ways and in preferring such meaning over other 
likely meanings. It is in these methods that the jurists differ. They have 
adopted rules for interpretation and the application of these different 
rules may lead to a difference of opinion. This will be obvious in the next 
two chapters. 

Sometimes, a meaning that may be probable is made definitive 
through consensus of opinion of the jurists. In such cases too, the jurists 
maintain that there is no possibility of ijtihad, and the meaning settled 
by ijma' is to be followed by the mujtahid. This was explained in the 
study of ijma' as a source of law. It is for this reason that jurists like al- 
Ghazali have stated that the first thing a mujtahid must do when he 
begins interpreting is to find out if there is Jima' on the issue. 

Ijtihad also takes place in cases where no evidence, direct or 
indirect, can be found for an issue faced by the mujtahid. It is in these 
cases that some of the modes of ijtihad come into operation, as is 
explained below. 

The Three Modes of Ijtihad 

The jurists in general practice three types or modes of ijtihad. In reality, 
the activity of the jurist cannot be split up into separate modes. Ijtihad is 
a single seamless process, but for simplification and ease of 
understanding this activity is divided into three types as Follows: 

The first mode 

In the first mode, the jurist stay as close as he can to the texts. Refocuses 
on the literal meaning of the texts, that is, he follows the plain meaning 



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rule. In doing so, he first tries to find explanations for difficult or 
unelaborated words from the texts themselves. He moves to other 
sources, like the meaning of words in literature, later. This also depends 
on whether the words have been used in the texts in their literal sense or 
their use is figurative (haqiqah and majaz). 

The text may not indicate the required meaning through a plain 
reading. In such a case, the jurist will use other techniques, called 
dalalat, through which the implied meanings are ascertained. These 
techniques will be explained in the next chapter. 

The second mode 

When the first mode of literal construction is exhausted by the jurist, he 
turns to syllogism, which is called qiyas. This mode is confined to strict 
types of analogy. These are called qiyas al-ma'na and qiyas al- illah. 
Certain loose forms of analogy like qiyas al-shabah or analogy of 
resemblance are rejected by some jurists. The reason why only strict 
methods of analogy are approved is again the desire of the jurist to stay 
close to the intention of the Lawgiver. If very loose methods are adopted 
the Islamic colour of the legal system may be lost. Qiyas is, therefore, 
designed to be a strict type of analogy and may be said to apply to the 
process of finding an exact parallel. The second mode of ijtihad is 
confined to the use of qiyas. 

The third mode 

The second mode of ijtihad is confined to the extension of the law from 
individual texts, while in the third mode the reliance is on all the texts 
considered collectively. This means that legal reasoning is undertaken 
more in line with the spirit of the law and its purposes rather than the 
confines of individual texts. 

The spirit of the law and its purposes can be witnessed clearly in 
the general principles of the legal system. The principles are used by 
methods like istihsan and maslahah mursalah. The third mode of ijtihad 
provides the jurist with the opportunity to generate new principles 
provided he observes a prescribed methodology and fulfils the 
conditions imposed for such legal reasoning. 

The Complete Process of Ijtihdd 

It has been stated above that all three modes of ijtihad are practised as a 
single seamless activity. An understanding of these modes in not enough 
for visualising the total activity of ijtihad. There are some other processes 



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involved that complete it. The following states and activities collectively 
depict the process of ijtihad. 

• The mujtahid acquires the qualifications necessary for ijtihad. 

• The mujtahid understands the different forms of bayan or elaboration 
of the texts, which is usually provided by the Lawgiver Himself, and 
also identifies the occasions on which such bayan is invoked. 

• The mujtahid exercises all three modes of ijtihad, if necessary, in his 
effort to derive the law from the sources. 

• The mujtahid understands abrogation (naskh) and identifies the 
occasions on which rules have been repealed by the Law-giver. 

• The mujtahid exercises preference (tarjih) and reconciliation (jam') 
among apparently conflicting sources. 

All these activities when combined indicate the complete 
process of ijtihad. To understand ijtihad fully all these processes are to 
be understood. 

Ijtihad and its Types 

Ijtihad is obligatory (wajib) for the person who possesses the necessary 
qualifications for it and is equipped with the skills to perform it. The 
mujtahid is required to arrive at the hukm shar'i through an 
examination of all the relevant evidences. Whatever rule he derives after 
such examination and investigation is the zukm shar'i as far as he is 
concerned, and it is binding on him to follow it. He should not give up 
such a rule in favour of taqlid of another mujtahid. 

If a mujtahid is also the qadi' his opinion cannot be set aside by 
the ijtihad of another mujtahid. Even his own ijtihad on the same issue, 
arriving at a contrary opinion, will not upset his decision in the earlier 
case. The only way an opinion arrived at through ijtihad can be declared 
ineffective is when it is in clear conflict with a definitive text, because in 
such a case it was not ijtihad ab initio. 

A mujtahid is not required to render opinions in all areas of the 
law, and he may specialise in one particular area if he so chooses. For 
example, a mujtahid may specialise in personal law alone, and even in 
this he may choose one area like inheritance. Some jurists have opposed 
the idea of specialisation in ijtihad and they do not permit it. The 
apparent reason is that Islamic law, like any other legal system, is a body 
of general principles that are interrelated and are internally consistent 



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with each other. A mujtahid specialising in one particular area may not 
be able to maintain the internal consistency required by a legal system 
and thus his ijtihad may be prone to errors. The opinion of these jurists, 
who do not permit specialisation, appears to be based on a stronger 
reasoning. 

The Qualifications of the Mujtahid 

The qualifications for a mujtahid appear to be a later development in the 
history of Islamic law. No such qualifications were prescribed during the 
first two centuries of the Hijrah. It is only after the time of Muhammad 
ibn Idris al-Shafi'i, the founder of the Shaki school, that such conditions 
were given greater importance. Prior to this, it was because of the 
performance of the jurist in the field of Islamic law and his acceptance by 
the people, who reposed their faith in him, that he came to be accepted 
as a mujtahid. Nevertheless, some conditions are deemed necessary and 
these are listed below: 

1. Knowledge of the Arabic language: The texts are in Arabic and cannot 
be understood without a thorough understanding of Arabic. In fact, the 
Qur'an, and even the texts of the Sunnah, are the standards that often 
determine the rules of Arabic grammar. Interpreting the texts of the 
Qur'an and Sunnah, especially for purposes of deriving the law, is no 
easy job. The mujtahid has to have a very good command of the Arabic 
language to be able to undertake such interpretation. 

2. Knowledge of al-Kitab: The Qur'an is the primary source of Islamic 
law. This means that it is a source for the law as well as the general 
principles of this law. Further, it is the source that validates all the other 
sources of the law. Though the legal texts are considered to be about 600, 
the jurists have often relied on the other verses as well for strengthening 
their opinions. The memorisation of the Qur'an, or even the legal texts, is 
not considered necessary. It is sufficient if the jurist knows the location 
of the verses in the Qur'an. It is for this reason that some jurists have 
devoted their lives to the writing of legal commentaries on the Qur'an, 
often called Ahkam al-Qur'an. A condition within this conditions is that 
the mujtahid must know and understand all the occasions of abrogation, 
that is, the repealing and repealed laws, the nasikh and the mansukh. In 
addition, the jurist must have a knowledge of the asbab al-nuzul or the 
historical reasons why a certain verse was revealed, because this helps in 
the understanding of the intention of the Lawgiver; it provides the 
legislative history of the law. 



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3. Knowledge of the Sunnah: As the Sunnah provides a legal 
commentary on the laws in the Qur'an and is also an independent source 
of the law, the mujtahid must be fully aware of all the precedents laid 
down by it. This entails a knowledge of the mutawatir, the mashhur as 
well as the khabar wahid. Today, we have the sahih compilations by the 
great traditionists like. Imams Bukhari and Muslim. It must be noted, 
however, that the law that we read in fiqh books was derived and laid 
down by the schools of law before these compilations were made. It is, 
therefore, necessary to understand the criteria laid down by the jurists 
for the classification and acceptance of ahadith. Although many of the 
rules are common, there are some differences too. Some very good books 
have been written in the present times that explain the criteria used by 
the jurists. 

4. Knowledge of Ijma\.. As stated earlier, some jurists have laid down 
that the first source to be consulted, before a mujtahid begins his task of 
interpretation, is ijma\ If there is ijma' on an issue, the mujtahid cannot 
reopen such issue. In addition to this, knowledge of the principles 
upheld by ijma.' will guide the mujtahid on other issues. 

5. Knowledge of the maqasid al-shari'ah: This condition has been added 
by later jurists. In this book it has been shown in detail why a knowledge 
of the purposes of law is necessary for under-standing and deriving the 
law. As these are ultimate values, a knowledge of Arabic is not essential 
for understanding the maqasid al-shari'ah and their operation. 

6. Aptitude for ijtihad: Another condition that some writers lay down is 
a natural aptitude for law and ijtihdd. This is more like a God given gift 
than something that can be acquired. Just like a good knowledge of 
Arabic does not make a person a poet, the fulfilment of the above 
conditions will not make a person a mujtahid. 

Taqlid as a Methodology 

Taqlid, as generally understood, means following the opinion of the 
schools of Islamic law in matters of conduct. Thus, a Hanafi follows the 
opinion of the Hanafi school, while a Shafi'i follows the opinion of the 
Shafi'i school. As opposed to this, ijtihad means that the person in need 
of an opinion does not follow the opinion of any school, but derives the 
rule of conduct for himself directly from the sources of Islamic law. Such 
a person would obviously be designated as a mujtahid, and the mujtahid 
must have some basic qualifications that we have studied in the 
previous chapters. Further, the mujtahid must follow a system of 



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interpretation: either an established system of a school or one that he has 
devised for himself. All persons who cannot lay claim to the status of a 
mujtahid, due to the lack of requisite qualifications and skills, must 
"follow the opinion of some mujtahid, that is, they must perform taqlid. 
Yet, we find that in modern times many scholars have condemned 
taqlid, and have insisted on the necessity of ijtihad. 

The reason for this is that in the writings of some of the earlier 
jurists taqlid is considered mandatory for all jurists and independent 
ijtihad is not permitted. This is also termed as the "closing of the gates of 
ijtihad." There have been many discussions on this issue in modern fiqh 
literature. In the light of these discussions, many modern scholars 
maintain that the doors of ijtihad were never closed and this activity 
should be carried on in the modern world, and taqlid should be 
shunned. 

Do these scholars mean that every layman should interpret the 
sources of Islamic law for himself and should avoid following the 
opinions of the schools of law? Do they mean that some scholars should 
undertake ijtihad and the rest should follow their opinions? 

There is another form of taqlid too, in which a layman does not 
follow one school, but chooses whichever opinion he likes from one of 
the schools. Thus, a scholar may choose an opinion from the Hanafi 
school today and tomorrow he may choose one from the Shafii'i school 
or from some other school for that matter. Is this taqlid or ijtihad, or is it 
something else? 

Our purpose in this chapter will be to answer most of these 
questions and to determine the exact scope of taqlid as well as its utility 
in the present times, if any. In doing so, we will determine the function 
of the jurist whom we have called the faqih, as distinguished from the 
mujtahid. 

Taqlid as a Basis for the Islamic Theory of 
Adjudication 

In the previous part, while discussing ijtihad, we stated that ijtihad is a 
legislative function, because it lays down the law for the first time. As 
compared to ijtihad, the purpose of taqlid is to lay down a methodology 
for the faqih for discovering and applying the law in the light of the 
already settled law. This is the function of the modern judge too, who 
discovers the law from the statutes and precedents to settle the disputes 
brought to him. It is not the task of the judge to legislate or lay down 
new law in his judgements. If he does this, he is encroaching upon the 



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function of the legislature. Here we are following the generally accepted 
view and we are not concerned with the debate that questions whether 
the judge really discovers the law and applies it or whether he does 
legislate. 

In Islamic law, the task of the faqih appears to be the same as 
that of the modern judge who is settling issues of law and fact. The 
doctrine of taqlid furnishes us the basic material for developing an 
Islamic theory of adjudication. In the introduction to this book we stated 
that the discipline of usul al-fiqh provides us with the basic raw material 
and the structure through which work on the Islamic theory of 
adjudication can be carried out, just like it provides us with a 
methodology for the Islamic theory of legislation in the form of ijtihad. It 
would be naive to expect that usul al-fiqh provides us with fully 
developed theories of legislation and adjudication that can be just picked 
up and implanted in a modern legal system. It does, however, provide 
us with substantial raw material with which we can easily build. 

In this chapter, it is our task to show what raw materials are 
provided by the doctrine of taqlid. There is also a need to understand 
this doctrine in depth because it has been unjustly condemned by many 
modern scholars and blamed for the stagnation that is faced by the 
Islamic legal system. 

Literal Meaning of Taqlid 

The word taqlid is derived from qaladah, which is an ornament tied 
around the neck (like a necklace) or it is the strap that holds the sheath of 
the sword and is usually swung around the shoulders. The word 
qaladah is also used to mean the strap by which a piece of wood is hung 
from the neck of an animal; it prevents the animal from running astray, 
because it strikes it on the knees when it tries to run. In this sense, the 
word taqlid carries a restriction within it, and this restriction is found in 
the technical meaning of the term. 

Technical Meanings of Taqlid 

In its technical sense, taqlid is defined by Ibn al-Hajj as "acting upon the 
word of another without hujjah (proof or lawful authority)." There are 
two ways in which this definition has been understood, and has led to 
some confusion about the meaning and role of taqlid in the present 
times. 



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The first meaning is assigned by modern writers. Abdur Rahim, 
for example, understands it to mean the following of the opinion of 
another without knowledge or authority for such opinion. In other 
words, when a person asks a jurist for an opinion, he should not ask him 
about the basis for his opinion, whether it has been derived from the 
Qur'an, the Sunnah or ijma' or some other source; he should follow it 
without question. This meaning is accepted generally by most modern 
writers, and it is this form that they condemn. The earlier jurists do not 
understand the meaning of the definition in this way. 

According to the earlier jurists, the word hujjah means 
permission given by the shark ah. Taqlid, therefore, means following the 
opinion of another when the shark ah has not given permission to do so. 
This meaning makes taqlid unlawful, that is, whoever follows the 
opinion of another without permission of the shark ah, is committing an 
unlawful act. 

Following the opinion of a jurist does not fall within this 
meaning of taqlid. The Muslim jurists maintain that following the 
opinion of a qualified jurist is permitted by the shark ah, and is not 
taqlid. This means that there are two types of taqlid: prohibited taqlid 
and permitted taqlid. To understand this thoroughly, the hukm of 
ijtihild as well as that of taqlid needs to be examined. 

The Hukm of Taqlid and Ijtihad 

Taqlid, as defined above, is null and void (batin) or prohibited 
(haram) according to the earlier jurists, whereas ijtihad is obligatory 
(wajib). This hukm is applicable to all. For the mujtahid it is a universal 
obligation, and it is incumbent upon him to derive the rules directly 
from the texts of the Qur'an and the Sunnah. For the layman it is a 
communal obligation, that is, someone in the community must 
undertake ijtihad. 

This means that following the opinion of another, without the 
permission of the shark ah, is unlawful, and is called taqlid. The hukm of 
such taqlid is that it is null and void. If this is the case, why do some 
people follow the opinions of jurists in their schools? 

Taqlid in Law is an Exemption from the General Rule 
of Prohibition 

To understand the meaning of taqlid in law, let us examine the 
definition again. According to the jurists, the use of the word hujjah in 
the definition, "acting upon the word of another without hujjah," 



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excludes this activity from the meaning of taqlid. Al-Shawkani explains 
that the use of the word hujjah excludes the following four types of 
activity from the meaning of prohibited taqlid: 

• Acting upon the words of the Prophet (peace be on him) is not mode 
of prohibited taqlid. 

• Acting upon ijma' is not prohibited taqlid. 

• Acceptance of the word of an upright ('adl) witness by the Qadi 
constitutes no sort of prohibited taqlid. 

• The layman acting upon the word of a jurist is not indulging in the 
prohibited taqlid. 

The Hanafi jurists may add a fifth case to this: acting upon the 
opinion of a Companion of the Prophet is not prohibited taqlid. These 
cases do not fall under condemned or prohibited taqlid, because the 
sharp ah has permitted all these forms; a hujjah (proof) exists for such 
permission. Some of these cases are obvious, but the case of the faqih is 
explained by al-Ghazali as follows: 

If it is said that you have condemned taqlid, and this (lay -man's taqlid of 
the jurist) is the very essence of taqlid, we shall respond that taqlid is the 
acceptance of an opinion without hujjah, but following the opinion of the 
mufti has been made obligatory (wajib) for the layman through the dalil 
(evidence) of ijma', just as it is obligatory for the judge to accept the 
statement of ('adl) witness. 

The authority permitting this activity, and excluding it from the 
meaning of taqlid is ijma'. Following the opinion of the jurist by the 
layman, therefore, cannot be called prohibited taqlid, that is, condemned 
taqlid. Some jurists exclude some more cases from the meaning of 
condemned taqlid on the basis of the principle of necessity (darurah). 
The founder of the Maliki school, Malik ibn Anas, is said to have 
permitted fourteen cases of taqlid. A few of these are given below: 

• It is permitted to the layman to accept the opinion of a doctor (tabib). 

• It is permitted to accept the opinion of a trader in the valuation of 
property (as an expert). 

• The buyer is allowed to accept the opinion of the butcher that the meat 
he is buying has been properly slaughtered. 

• The statement of a child bringing permission to the guest at the door 
that he is allowed to enter may be accepted by the guest. 



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This shows that taqlid is a part of our daily lives and we are indulging in 
some form of taqlid at each step. The truth of this claim is driven home 
when we examine our modern legal system. 

Taqlid and the Islamic Legal System 

In the Islamic legal system, the system of taqlid or following 
precedents is implemented through the schools of law. The founder of a 
school has two functions: he lays down the usul or the principles of 
interpretation and he uses these principles to settle the issues of the law 
(turn'). Thus, Abu Hanifah laid down the principles of interpretation for 
the Hanafi school and he used these principles to derive the detailed 
rulings of the substantive law. The founders of the other schools did the 
same for their schools. This type of jurist is called the mujtahid mutlaq or 
the absolute jurist. This jurist is completely independent insofar as he 
does not indulge in any type of taqlid. 

As compared to the founder, there are other jurists who are well 
qualified to undertake ijtihad. These jurists, however, follow the 
principles of interpretation laid down by their teacher. They use these 
rules of interpretation to derive the substantive law, and their opinions 
in this area may differ from those of their teacher. These jurists are 
performing taqlid when they follow the opinion of their teacher about 
the principles of interpretation. This type of taqlid is called taqlid fi al- 
usul or taqlid in the principles of interpretation. The jurist who performs 
taqlid fi al-usul is called mujtahid fi al-madhhab or the mujtahid who is 
independent within the school. 

There are other jurists in the school as well who are well 
qualified, but have not been granted the status of mujtahid fi al- 
madhhab. These jurists perform only one type of taqlid, and this is called 
taqlid fi al-furu' or following the decisions of the jurists of the higher 
grade. These jurists follow the opinions or decisions of the school laid 
down by the mujtahid mutlaq and the mujtahid fi al-madhhab. A 
question may be raised at this stage as to which opinion of the school do 
they follow, because there may be several opinions on a single issue. For 
example, Abu Hanifah may have issued one opinion on an issue, Abu 
Yusuf another on the same issue and Muhammad al-Shaybani yet 
another. The rule for this is well settled: there will always be a single 
preferred opinion within the school. Ibn 'Abidin states this as follows: 
The preferred opinion of the school is to be followed, and the opinion 
not preferred is to be treated as non-existent (al-marjuh ka'l adam). It is 
as if the preferred opinion has abro-gated the other opinions. 



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There is, thus, no confusion about which opinion of the school is to be 
followed. This also sets aside the objection raised by some that there are 
so many opinions in Islamic law that one does not know which opinion 
to follow. The schools bring uniformity into their law through this 
method. 

In a developed legal system, it is not possible that there be just two or 
three types of jurists. There are several types, and each developed school 
has determined the grades of the jurists based on these types. It is 
through these grades that Islamic law implements its system of 
following precedents. Ibn 'Abidin lists these grades for the Hanafi school 
as follows: 

1) The first grade: mujtahid mutlaq or mujtahid fi al-shar'. The mujtahid 
mutlaq is usually the founder of the school, for example, Abu Hanifah 
for the Hanafi school. He lays down the principles of interpretation for 
the school. We have already examined these principles under the 
meaning of the term asl, while defining usul al-fiqh. The mujtahid 
mutlaq uses his principles of interpretation to derive the law from the 
sources (for the mujtahid). In short, this type of independent jurist lays 
down the principles of in-terpretation as well as the law. In terms of our 
Islamic theory of legislation, this jurist is the legislator who also lays 
down the methodology of the legislator. 

2) The second grade: mujtahid fi al-madhhab or the mujtahid within the 
school. The mujtahid fi al-madhhab performs taqlid fit al-usul, that is, he 
follows the principles laid down by the founder of the school, and using 
these principles derives the law himself. His opinion in the derived law 
may differ from that of his teacher. Jurists like Abu Yusuf and 
Muhammad al-Shaybani are within this grade in the Hanafi school. They 
used the principles determined by Abu Hanifah to derive the law. In the 
case of muzara'ah (tenancy), for example, they differed with their 
teacher. Abu Hanifah declared tenancy to be illegal, while the two 
disciples (sahibayn) declared it legal. The opinion preferred by the 
school is that of the sahibayn. The jurists in this grade are independent 
in all respects, except the usul (principles of interpretation). In terms of 
our theory of legislation, this jurist is also a legislator, but he follows the 
methodology of legislation determined by the full mujtahid. 

3) The third grade: mujtahid fi al-masa''il or the mujtahid for new issues. 
The mujtahid fi al-masa'il determines answers to cases that are not 
settled by the jurists of the first two categories. In the Hanafi school, 
jurists like al-Khassaf, al-Tahawi, al-Karkhi and al-Sarakhsi are placed in 



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this grade. These jurists cannot question the cases that have been settled 
by the jurists of the first two grades. Their function is said to be the 
determination of new unsettled cases. A comparison of the methodology 
of these jurists with those in the next grade shows that the methodology 
is the same and is called takhrij. These are the jurists whom we will be 
calling faqihs in this book, along with those in the next grade. We now 
step into the area of adjudication, and this jurist is like the judge of the 
Supreme Court, so to say, who is filling the gaps left in statutes or earlier 
precedents. 

4) The fourth grade: ashab al-takhrij or those jurists who clarify the law 
of all the existing cases. The great jurist Abu Bakr al-Jassas is placed in 
this category. The truth is that he was no less than any of the jurists in 
the previous category, and the method-ology used by him was the same 
as that used by the mujtahid fi al-masa'il. This methodology will be 
explained at some length in the next chapter. For this purpose, we will 
combine these two grades into one, that is, the mujtahid al-masa'il and 
the jurist practising takhrij and call both the ashab al-takhrij. 

5) The fifth grade: ashab al-tarjih or those who preferred the stronger 
opnions in the school so as to bring uniformity in to the law. Jurists like 
Abu al-Husayn al-Quduri, al-Kasani, al-Marghinani (the author of al- 
Hidayah) are placed in this grade. 

6) The sixth grade. The rest of the well known jurists in the Hanafi 
school are placed in this grade. They are said to recognise the stronger 
opinions preferred by the jurists of the previous grade. Most well known 
jurists like Sadr al-Shari'ah, Ibn al-Humam and the authors of the 
authoritative texts (mutun mu' tabarah) would fall in this category. An 
examination of their method and their works reveals again that they 
were no less than the jurists in the previous category. 

The mujtahid and the faqih 

When we focus on the methodology being used by each grade of jurists, 
and on the basis of what has been said above, we can easily classify the 
jurists into two grades, as follows: 

• Those who may be classified as full mujtahids performing the 
legislative function and settling the law. In this category we will place 
the jurists of the first two grades, that is, the mujtahid mutlaq and the 
mujtahid fi al-madhhab. Their function was legislative in the sense that 
they were laying down the law in the first instance by deriving it directly 
from the primary sources, that is, the Qur'an and the Sunnah. Today, this 
function is to be performed by the state and the legislature assisted by 



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various bodies like the Council of Islamic Ideology and the Federal 
Shariat Court of Pakistan. This, of course, applies to Pakistan and each 
Muslim country may have its own unique system for this. At the 
international level, the OIC has established the Islamic. Fiqh Academy, 
but this Academy needs to be more open and to entertain opinions of 
jurists other than those they have selected as their members. Further, the 
Academy needs to directly link and publish the basis for adopting a 
view. At present the research published by the Academy is not linked to 
the opinions. In other words, a dalil for each opinion needs to be made 
public. Without this the opinions of the Academy will have no 
persuasive force. We have also indicated in the previous part that the 
methodology of ijtihad has to be fully integrated within the modern 
legislature if the process of Islamisation is to have real meaning. At 
present the legislature is free to use whatever standards it likes, although 
under the Constitution it is bound to impart Islamic justice in all the 
laws that it frames. 

• Those who can be classified as full faqihs performing the judicial 
function, that is, discovering the law through the general principles and 
extending it to new cases with the help of reasoning from principles. In 
this category we would place all the jurists in the last four grades. The 
broad methodology used by these jurists we will call takhrij or the 
extension of the law by reasoning from principles. This methodology is 
evident in the works of jurists like al-Karkhi, al-Dabusi and al-Sarakhsi. 
It forms the subject matter of this part of the book. Today, the 
methodology of takhrij is to be exercised by the higher courts in the 
country. In this work, law professors and lawyers also participate using 
the same methodology. In other words, all cases in the law courts are to 
be settled through the methodology of takhrij, and it is a methodology in 
which judge:, professors and lawyers are already well versed; it is 
nothing new for them. What needs to be developed and refined, 
however, is the Is-lamic theory of adjudication. This theory must de- 
termine in broad terms the standards the judges are to use while 
deciding cases and delivering judgements. 

We may now turn to the sources of law for the second grade of 
jurists, performing the judicial function. The purpose of studying the 
sources of law for the faqih under a separate heading is to indicate some 
of the principles and standards that a Muslim judge has to keep in view. 
A large number of principles have been quoted in the attempt to show 
that some of those principles are treated as fundamental by the system, 
while others have been deri'ed by the jurists from the study of various 



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cases of the law. The mod- ern judge may disagree with some of the 
latter principles and improve upon them, provided he ensures the 
analytically consistent development of the Islamic legal system. We 
would like to end this chapter by saying that the methodologies of 
ijtihad and takhrij, which we have equated with legislation and 
adjudication, are not water-tight compartments, and there may be some 
overlapping, especially where the maqasid al-shari'ah are concerned. In 
addition to this, there are many legislative presumptions that are used 
both by the mujtahid and the faqih. The important thing is to keep the 
two functions conceptually apart, and these functions can be identified 
with a single simple statement: judges do not legislate, they merely 
discover the law. 



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CHAPTER-XU 


Shah Wali Allah's Writings on different 
Aspects of Islamic Fiqh and Jurisprudence 


Preliminary note 

As the Shah occupies a very prominent position as a scholar, so 
he ranks much higher in the long list of the authors and writers on 
different subjects and themes of Islamic teachings His works are 
specially known for the sublimity of thought and meaning and lucidity 
of his style His Arabic style is specially regarded closer to the native 
Arabs than that of the most of non- Arab writers. His language is very 
much similar to the ingenuous Arabs, free from the flaws commonly 
peculiar to that of the non-Arabs scholars. By some critics he has been 
regarded the introducer, even inventor of a style which is 
comprehensive, forceful, terse, still expressive, enriched with a great 
amount of similarity with the Holy Prophet's style. 

Peacefulness of His Mind 

About Shah's academic works one point is also important to 
note. It is to keep full command over his intellect and mental faculties 
even in the face of the most disturbing political conditions and ever 
deteriorating political situation and the state of the law-and-order 
around him. He kept himself engaged in literary pursuits and religious 
reform unmindful of his surroundings. Syed Sulaiman Nadwi has hinted 
at serenity of the Shah in his own inimitable style. Extremely few writers 
have been there whose compositions are free from the influences exerted 
in their age or transcend the time and space, or , at least, show no " 
concern to the intellectual torpor common among their compatriots. The 
Shah's writings, however, leave his times and circumstances in the shade 
and completely ignore personal reactions to the inconveniences faced by 
him. The reader never feels that he wrote them at a time when law and 
order had completely broken down in the country, chaotic conditions 
prevailed everywhere and Delhi, having lost its position as the centre of 
a great empire, was the scene of intrigues and conspiracy, where every 



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soldier of fortune was dreaming of establishing his own kingdom, Sikhs, 
Marathas, Jats and Rohilas had become rebellions on the one hand, and 
adventures like Nadir Shah and Ahmad Shah were invading the country 
every now and then. Delhi was sacked several times during this period, 
but the Shah, who was witness to all these happenings, never spoke of 
them nor there is any trace of anxiety or sorrow he would have naturally 
felt in his writings. It seems as if he occupied some celestial sphere far 
away from terrestrial incidents and occurrences. His composure of a real 
man of learning: Verily in the remembrance of Allah do hearts find rest. 

Cultivation of knowledge in the true sense is of course a form of 
the recollection of God. No wonder, therefore if it produces serenity of 
mind and tranquillity in heart. Anyone going through thousands of 
pages written by the Shah would hardly come across anything alluding 
to the tumultuous situation obtaining in the twelfth century when 
everything was disturbed by chaos and turmoil. He would feel 
immersed in a river of knowledge flowing placidly, undisturbed by the 
commotion around it produced by the march of events. 



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CHAPTER-XIII 


Writings of Shah Wali Allah on Fiqh 

The Shah wrote a great number of works on hadith, its allied subjects 
and fiqh. To some biographers his works are two hundred odd. 
Following is a short description of his writings on hadith, deep meaning 
of hadith, Fiqh and ijtihad. 

1. Musaffa- A commentary on Muwatta of Imam Malik in persian. 

2. Musawwa- A commentary on Muwatta of Imam Malik in persian. 

Both these works were written by the Shah to illustrate the way 
of teaching hadith and drawing legal rulings from them. They 
also show the depth of his knowledge and insight into fiqh and 
hadith. The Shah gave precedence to the Muwatta of Imam Malik 
in the six most authentic works of hadith and assigned it the 
same place as given to I bn Majah by others. He always pleaded 
to give it precedence in teaching of the subject. 

He writes in his will. 

"When one has attained proficiency in Arabic, he should be 
taught Muwatta with the chain of narration through Yahya b. 
Yahya Masmudi. No deviation should be made in this regard, 
since it forms the central work in hadith literature. Its study is of 
great merit. I have studied it thoroughly. 

3. Iqdul Jid fi Ahkam-al- Ijtihad w al-Taqlid 

At the very title illustrates, the writing is a short treatise in the 
Arabic language which deals with in a fail detail the issues of 
Ijtihad and Taqlid. 

4. Al-Insaf fi Bayan-i-Asbab al-Ikhtalaf" : Two epilogues are 
included in the Hujjat Allah-al-Baligha, which cover 22 pages and 
are divided into four sections. According to the publisher these 
concluding chapters were included in only one manuscript of 
the Hujjat. In the concluding lines of these epilogues, the Shah 
says : 



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'I had decided to write a treatise under the title Ghayat-al-Insaffi 
Bayan-i-Asbab al-lkhtalaf , in which I wanted to discuss in some 
details the reasons for differences, illustrating them with 
examples and evidences. But I could not find time for it. 
However, while dealing with the issue in this work ( Hujj at- Allah 
al-Baligha), I thought it proper to write whatever I had in mind at 
the time, since it was then easier to do so." 

It seems that the Shah was able to find time to rewrite this 
portion, with certain additions. The treatise subsequently 
completed makes certain additions and omissions in the 
epilogue spoken of earlier. 

The Al-Insaf is a unique work on the topic and has seen several 
reprints in India and other countries. It was also published in 
Egypt, first in 1327/1909 by Shirkata al-Matbuat al-Ilmiyah and 
then by Maktabata al-Mansurah. It has been checked and edited 
by the noted Traditionist Shaikh "Abdul Fattah Abu Ghuddah 
of Egypt" 

5. Tamil al-Ahadith (Arabic) : It recounts the stories of different 
prophets mentioned in the Qur'an in order to draw out lessons 
and rules of Shariah from the Quranic descriptions. Though 
brief, it shows the Shah's deep knowledge of the Qur'an. The 
work was published by the Shah Waliullah Academy, 
Hyderabad (Pakistan). 

6. Ad-Durrus Thamin fi-Mubbashshiratil Nabi al- Amin ( Arabic). 
Although it is a collection of glad tidings the Shah and his 
ancestors had from the holy Prophet, this has a relation to the 
Islamic Fiqh in a way. In this book the Shah reports that about 
the existing schools of Islamic fiqh he consulted with the spirit of 
the Holy Prophet as to which one was closer and more 
preferable. My heart received an instruction from the Prophet 
that all of these schools were equal in respect of merit and 
excellence and Muslims are at liberty to choose anyone out of 
those according to their intellectual inclinations. It was 
published with the Musalsalat and Al-Nawadir in 1391/1970 by 
Kutub Khana Yahyawi, Saharanpur. 

7. Fuyuz al-Haramayn (Arabic) : The book contains 
autobiographical reminiscenes and a record of spiritual 
transports and attainments during the Shah's stay in Hijaz 
alongwith certain scholastic and mystical discussions. The work 
being meant for the learned would be found difficult of 



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comprehension by those who are not well-acquainted with the 
philosophy of religion and spiritualism. 

8. Qurrat al-Aynaynfi Tafdhil al-Shaykhayn (Persian) brings forward 
the evidences to prove the superiority of the first two caliphs, 
which has seen several reprints. 

9 . Hujjat Allah al-Baligha 

The magnum opus of Shah Waliullah, the Hujjat Allah al-Baligha , is a 
comprehensive and cogent work presenting a synthesis of the Islamic 
creed, devotions, transactions, morals, social philosophy, statecraft and 
spirituality. All these have been balanced and integrated in such a 
perfect manner that they appear to be jewels of the same necklace or 
links of the same golden chain. It also does not suffer from the usual 
weaknesses found in most of the old works, written apologetically or 
aggressively. This moderation and balance is the result of the Shah's 
deep and wide knowledge of hadith and his bent of mind fostered by the 
study of the Prophet's character as well as keeping company with pious 
and virtuous scholars. Few works can compare the compendious yet 
clear and cohesive exposition attempted in the Hujjat Allah al-Baligha, 
which laid the foundation of a new dialectical theology for the modern 
age of reason. It is thus a work which can satisfy any truehearted man 
endowed with common sense, provided investigations of the Shah. So 
far as we are aware there is no other work in any language known to us 
written for the investigation of the truth of any religion on a rational 
basis or at least it has not come to light. 

India or rather the entire world of Islam was ripe by the close of 
the twelfth century A.H., owing to several social, intellectual and 
pedagogic developments, to enter into a new age of reason which was to 
stimulate a general taste for discovering the rationale of the precepts and 
directives of Shari' ah . This new trend would have surely misled many a 
mind and pen; for the hadith and sunnah were to be singled out, due to 
peculiar circumstances of the time, for criticism and creating doubts 
about their authenticity. No body could have succeeded in meeting this 
challenge if he had not been well-versed in the Qur'an ant the Sunnah , 
philosophy, theology, ethics, psychology, sociology and economics (of 
his time) and also possessed the purity of spirit known as Ihsan in 
Islamic idiom. 

All those factors demanded that before the new era began, some 
one should deal, within human limitations of course, with the issues that 



124 


Haz. Shah Wali Allah in the mirror of his juristic views and services 


were going to be raised shortly. Such a man need not have been 
impeccable nor his knowledge was to transcend his own time and space; 
he was bound to reflect on his past and contemporary streams of sacred 
and secular knowledge and his pattern of education; yet, he had to be a 
faithful interpreter of the hadith and sunnah. 

Writing about the reasons and impulses which led him to pen 
the Hnjjat Allah al-Baligha, the Shah says : 

"The most delicate and deep as well as sublime and glorious aspect of 
the science of hadith consists of its wisdom and rationale and 
characteristics and significance of religious injunctions which impart 
insight into them and save man from confusion and eccentricity." 

10. Izalat Al-Khifa ' An Khilafat Al-Khulfa 

Significance of Izalat al -Khifa 

Another remarkable work by Shah Waliullah, the Izalat al-Khifa 
‘an-Khilafat al-Khulfa / is also an incomparable work in several respects. 
As scholarly and gripping work which exhibits the depth of the Shah's 
thought as well as his brightness and profound reflection over the 
Quranic verses. Anyone who goes through it, unless he is not biased, 
will be convinced that the author is not merely a schoolman but blessed 
with divine grace and intution in composing this work. The Shah 
himself says in its introductory remarks. 

"The fact is that divine effulgence inundated the heart of this weakling 
with the knowledge about this matter so exhaustively that he was 
absolutely convinced that affirmation of the caliphate of these persons 
(the first four caliphs) constituted one of the fundamental principles of 
Islamic creed. So long as this essential foundation is not firmly 
established, none of the Shari'ah's injunctions will find a sound and 
secure support." 

Several eminent scholars who were deemed as masters in the 
science of logical reasoning but differed with the Shah on a number of 
issues, had to acknowledge his erudition and penetrating perception on 
going through this work. The author of Al-Yan’e al-jani, Muhsin b.Yahya 
of Tirhut says : "I noticed that whenever our mentor Maulana Fazl-i-Haq 
Khairabadi (d. 1278/1861) had some leisure, he was engrossed in a 
particular book. We found his gripping interest in the book unusual and 
tried to find out what was that work and who was its author. One day 
our teacher remarked, 'The author of this book is an ocean of immense 



Haz.Shah Wali Allah in the mirror of his juristic views and services 


125 


expanse.' We then came to know that it was Izalat al-khifa of Shah 
Waliullah, a copy of which had somehow reached the Maulana" 

Among the celebrated scholars of the later times, Maulana 
'Abdul Hai Firangi Mahli (d. 1304/1887) was an outstanding 
academician. In his well-known work At-T'aliq al-Mumjadda'ala Mmvatta 
al-lmam Muhammad he says that "Izalat al-Khifa is the solitary and 
matchless book on its subject." 

Correlation between Hujjat Allah and Izalat al-Khifa 

In the Hujjat Allah al-Baligha, the Shah had presented a 
coordinated and comprehensive concept of Islam with reference to its 
scheme for human life, culture, customs and social organisation. In it the 
shah demonstrated that a healthy and vigorous society avoiding all 
excesses could not come into existence without accepting the creed of 
Islam and acting on the principles laid down by it for social behaviour. 
This scholarly work contained material which could satisfy the 
inquisitive minds and the intellectuals of the coming generations, but 
there still remained the need to elucidate the characteristics of a real 
Islamic society, its objectives and sphere of activity. He had to show, in 
the light of history as well as the Qur'an and the sunnah, that the 
institution of khilafat (caliphate) was meant to furnish a practical example 
to be followed by Muslims for all times to come. This was also necessary 
in order to clear the misunderstandings created long ago about this 
institution which had given birth to a very unfortunate schism in Islam. 
In fact, the predominance of Iranian nobility in the days of the Shah had 
given rise to a sort of intellectural anarchy among the Muslims which 
had shaken not only their creed and social behaviour but also 
endangered the continuance of their authority over the country. It had, 
in fact, made uncertain the future of Muslims in the country. 

Contrary to the general opinion held by the populace who were 
not aware of the history and fundamental precepts of this splinter group, 
nor had any knowledge of their authoritative works, this fraction was 
not just another juristic school within Islam. Its concept of Islam was 
different from that based on the Qur'an and the sunnah and the grandeur 
and finality of prophethood. It was a school of thought in itself, running 
parallel to the accepted view of Islam. Its creed about Imamate, which 
makes it equal or even superior to prophethood in certain aspects, is 
enough to bring out its fundamental differences with the accepted creed 
of Islam. 



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Haz. Shah Wali Allah in the mirror of his juristic views and services 


In the prelude to the Izalat al-khifa, the Shah explains why he 
came to write it : 

"The poor Waliullah says that innovations of the Shi' ah's have 
taken roots and the common people have been deeply impressed by 
them. This has created doubts and unseemly ideas in the minds of 
certain persons about the Khilafat-e-Rashida" 

11. Al-Juz-al-latif- Tarjimat-al-'Abd al-Dhayif (Persian), It forms part of 
Anfas-al-Arifin, which has also been published separately. It 
contains a brief autobiograhpical account and some 
reminiscences of the Shah. This book also helps us in 
understanding the Shah's juristic inclinations. 

The above furnished brief description of the Shah's juristic 
works establish it beyond doubt that Shah Wali Allah has 
offered a richer contribution to the scholarly tradition of Islamic 
fiqh. A deeper study of the Shah's works and academic legacy 
creates in the student an interpretational ability, simultaneously 
imparting him wider intellectual thinking and ideological 
moderation. 


Through a single lamp placed inside this house: 
Galaxies have come into being everywhere you go. 



Haz.Shah Wali Allah in the mirror of his juristic views and services 


127 


Acknowledgement 

In preparing the present book the author owes the following sources, 
some of them directly, others indirectly. 

• Hayate Wali - Abu Muhammad Rahim Baksh 

• Tazkirah Haz. Shah Wali Allah - Gilani Manaazir Ahsan, Maulana 

• Al-Yani al-Jani - Tirhati, Bihari Muhsin. 

• Muqaddama al-Mughni - Misri, Rashid Raza 

• al-Insaaf fi Banyani Asbaabil Ikhtilaf - Shah Wali Allah 

• Hujjatulahil Baliqhah - Shah Wali Allah 

• Ittihafu al-Nubala - Khan Siddiq Hasan, Nawab 

• Zafarul-Muhassilin - Gangohi, Mahmood 

• Al-Illam biman fi Tareekh al-Hind minal-Allam - Abdul Hai, 
Maulana. 

• Muqaddama al-Musawwa - A group of Arab scholars. 

• Tareekh-e-Dawat-wa Azimat Vol.5 - Ali Miyan Abul-Hasan Ali 
Nadwi. 

• Iqdul Jid fi Ahakamil Ijtihad wal-Taqlid 

• Tafhimaat al-Illahiya 

• Fuzul-Haramain 

• Darimi Sharif 

• Ghayatul Muntahi 

• Bukhari Sharif 

• Mishkat Sharif 

• Al-Arfa al-Shazi - Kashmiri, Anwar Shah 

• Illaus Sunnan - Binnori, Yusuf Allama 

• al-Nafi al-Kabir, Muqaddama al-Jami al-Saghir - Abdul Hai Allama, 
Lucknow 

• Muqaddama Faizul Bari - Binnori Yusuf Allama 

• Darse Tirmizi - Usmani, Taqi Mufti 

• Tazkira al-Numan - Dimashqi, Muhammad bin Yusuf 

• Izalatul Khifa - Shah Wali Allah 



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Haz. Shah Wali Allah in the mirror of his juristic views and services 


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